Williaiiis(iiil;.w  Ittwik  Co  I 
jaZSiDEIIOHf  i 

nnd  LawPtibtishfrs, 
4t  StateStreci. 

ROCJIKSTKR.X.Y 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  TREATISE 

ON  THE  LAW  AND  PRACTICE  OF 

Foreclosing    Mortgages 

ON  REAL  PROPERTY,  AND  OF  REMEDIES 
COLLATERAL  THERETO,  WITH  FORMS 

BY 

CHARLES  HASTINGS  WILTSIE 

OF  THE  ROCHESTER  BAR 


WITH  ADDITIONAL  CHAPTERS  ON 

MORTGAGE  REDEMPTIONS 

BY 
JAMES    M.     KERR 
OF  THE  NEW  YORK  BAR 


COMPLETELY  REVISED  BY 
HENRY  CLIFFORD  SPURR 

AND 

HIRAM  MORRIS  ROGERS 

OF  THE  NEW  YORK  BAR 


IN  TWO  VOLUMES 

VOL.  11. 


ROCHESTER,  N.  Y. 

WILLIAMSON  LAW  BOOK  COMPANY 

1913 


T 


COPYRIGHT 

BY 

WILLIAMSON  LAW  BOOK  COMPANY 
1913 


MORTGAGE  FORECLOSURES. 


CHAPTER  XXVIII. 

DELIVERING  DEED— PASSING  TITLE— OBTAINING 
POSSESSION. 

referee's  deed — ESTATE  CONVEYED — REQUISITES  OF  DEED — TITLE  OF  PUR- 
CHASER— FIXTURES — EMBLEMENTS — RENTS APPEAL  AND  REVERSAL — DELIV- 
ERY OF  POSSESSION — WRIT  OF   ASSISTANCE — SUMMARY  PROCEEDINGS. 

§  680.  General  principles. 

§  681.  Provisions  for  letting  purchaser  into  possession — Rents. 

§  682.  Effect  and  force  of  referee's  deed. 

§  683.  Estate  conveyed  and  interests  passed  by  referee's  deed. 

§  684.  Same — Assessments — Condemnation  and  damage  funds. 

§  685.  Same — Assignee  of  mortgagee — Purchaser. 

§  686.  Same — Bona  fide  purchaser. 

§  687.  Same — Community   property. 

§  688.  Same — Error  and  fraud. 

§  689.  Same — Emblements  and  ice. 

§  690.  Same — General  creditors  of  mortgagor. 

§  691.  Same — Invalid  mortgage. 

§  692.  Same — Irregularities   and   defects. 

§  693.  Same — Junior  liens. 

§  694.  Same — Licenses  and  trusts. 

§  695.  Same — "More  or  less." 

§  696.  Same — Mortgaged  succession. 

§  697.  Same — Obligations  of  purchasers. 

§  698.  Same — Parol   trusts. 

§  699.  Same — Possession  and  ejectment. 

§  700.  Same — Prior  liens — Rights  and  liabilities. 

§  701.  Same — Purchaser  at  irregular  or  invalid  sale. 

§  702.  Same— Rents— Title  to. 

§  703.  Same — Riparian  mortgages. 

§  704.  Same — Subrogation    of   purchaser. 

§  705.  Same — 'i  axes  on  land — Liability  of  purchaser  for. 

1001 


1002  MORTGAGE   FORECLOSURES.  [§    680 

§  706.  Same— Timber— Right  to. 
§  707.  Same— Usury— Bona  fide  purchaser. 
§  708.  Execution  and  delivery  of  deed. 
§  709.  Requisites  of  sheriff's  or  referee's  deed. 
§  710.  Error  in  description  in  mortgage— Correcting  in  deed. 
§  711.  Variance  of  description  in  mortgage,  decree  and  deed. 
§  712.  Title  of  purchaser  relates  back  to  time  of  executing  mortgage- 
Reserving  easement. 
§  713.  Time  for  redemption— Effect  on  title  of  purchaser. 
§  714.  All  fixtures  pass  to  purchaser  under  referee's  deed. 
§  715.  Exceptions  to  above  rule. 

§  716.  All  permanent  improvements  pass  under   referee's  deed. 
§  717.  All  emblements  pass  under  referee's  deed. 
§  718.  Right  of  purchaser  to  rents. 
§  719.  Same — During  period  of  redemption. 
§  720.  Same — Accounting  for  rents  and  profits. 
§  721.  Appeal  and  reversal — Effect  on  purchaser's  title. 
§  722.  Delivering  possession  of  premises  to  purchaser. 
§  723.  Possession  obtained  by  summary  process. 
§  724.  Provisions  of  Code  for  obtaining  possession. 
§  725.  Writ  of  assistance — When  granted. 
§  726.  Writ  of  assistance — How  obtained. 
§  727.  Against  whom  possession  delivered. 
§  728.  Who  entitled  to  writ  of  assistance. 
§  729.  Writ  of  assistance  improperly  granted, 
§  730.  Writ  against  tenants  in  possession. 

§  731.  Writ  of  assistance  not  granted  against  holder  of  paramount  title. 
§  732.  Summary  proceedings  under  New  York  Code. 

§  680.  General  principles. — Immediately  after  the  sale 
is  concluded,  if  the  purchaser  pays  the  amount  bid '°  and  com- 
plies with  the  terms  of  sale,  the  officer  who  made  the  sale  may 
execute  and  deliver  to  him  a  deed  of  the  premises.''^^  It  is  not 
necessary  to  make  a  report  of  the  sale,  nor  to  have  the  report 
confirmed,  before  the  deed  is  executed.  It  has  been  said  that 
the  referee's  deed  passes  the  title  to  the  premises  to  the  pur- 

''*  It  has  been  said  that  a  sheriff  and   has   also   purchased   the   claim 

is  not  liable  for  delivering  a  deed  of  such  junior  mortgagee,  but  not 

upon  a  sale  under  foreclosure  with-  the  bid.    Russell  v.  Grimes,  31  Neb. 

out  collecting   the   price   bid   by   a  784,  48    N.  W.  905,  aff'g  on  rehear- 

junior    mortgagee,    where    a    prior  ing,  27  Neb.  812,  44  N.  W.  107. 

mortgagee    for   the   benefit    of   the  "^^  Jackson  v.  Warren,  32  111.  331. 
mortgagor  has  purchased  the  decree 


§  680]  DELIVERING  DEED.  1003 

chaser  at  the  moment  of  its  delivery,  although  the  sale  may 
not  have  been  confirmed ;  "^^  but  a  legal  title  cannot  vest  under 
a  deed  until  its  delivery.'^ 

It  has  been  said  that  the  property  is  at  the  risk  of  the 
purchaser  from  the  date  of  the  delivery  of  the  deed  by  the 
officer  of  the  court,  and  that  he  cannot  repudiate  the  contract, 
although  the  sale  may  afterwards  be  set  aside  for  irregular- 
ity.'* The  person  holding  such  a  deed  has  been  said  to  be 
prima  facie  the  legal  owner  of  the  land  described  in  it.'^  Ac- 
cording to  the  English  doctrine,  a  purchase  at  a  foreclosure 
sale  is  not  complete  until  the  report  of  the  officer  making  such 
sale  has  been  confirmed ;  and  the  practice  there  is  to  withhold 
the  deed  until  the  entry  of  the  final  order  of  confirmation.'^ 

Where  a  deed  is  delivered  before  the  sale  is  confirmed,  the 
confirmation  relates  back  to  the  date  of  the  sale  and  gives 
effect  to  the  deed  from  that  time.''  While  the  decisions  in 
this  country  are  not  uniform,  it  is  thought  that  the  better  prac- 
tice is  to  report  the  sale  and  to  have  it  confirmed  before  deliv- 
ering the  deed.  Yet  in  those  states  where  time  is  allowed  for 
redemption  after  the  sale,  it  is  the  practice  to  delay  the  report 
until  the  deed  has  been  executed  and  delivered.'*  In  such 
cases  the  mortgagor  will  waive  all  merely  technical  objections 
to  the  sale  by  failing  to  have  it  set  aside  before  the  time  for 
redemption  expires.'^ 


72 For/  V.  Burch,  6  Barb.  (N.  Y.)  "^^  Jackson  v.  Warren,  32  111.  331. 

60.      See    Mitchell    v.    Bartlett,    51  See    Simerson   v.   Branch   Bank   at 

N.  Y.  447,  aff'g  52  Barb.   (N.  Y.)  Decatur,  12  Ala.  205. 
319;    Fuller   v.    VanGeesen,   4   Hill  ''^  Ex  parte  Minor,  11  Ves.  559. 

N.   Y.)    171;   Jones   v.   Burden,  20  'rt  Lathrop  v.  Nelson,  4  D\\\.  C.  C. 

Ala.    382.      See    ante,    chap,    xxvii.  194. 

for  the  New  York  practice,  which  '8  Walker  v.   Schum,  42  111.  462. 

requires  the  delivery  of  the  deed  be  See  also  Carroll  v.  Haigh,  108  111. 

fore  the  confirmation  of  the  sale.  App.  264. 

''S  Mitchell  V.   Bartlett,  51    N.   Y.  i^  Fergus  v.    Woodworth,  44   111. 

447.  374;   Walker  v.  Schum.  42  111.  462. 

^^  J  ones  V.  Burden,  20  Ala.  382. 


1004  MORTGAGE    FORECLOSURES.  [§    681 

§  681.  Provisions  for  letting  purchaser  into  possession 

Rents. Where  the  decree  in  a  foreclosure  provides  that 

the  purchaser  shall  be  let  into  possession  upon  producing  the 
deed  of  the  referee,  or  other  officer  making  the  sale,  the  pur- 
chaser does  not  acquire  the  title  or  the  right  the  possession  of 
the  land,  or  to  the  rents  and  profits  thereof,  until  the  delivery 
of  such  deed;*"  up  to  the  time  of  such  delivery  the  owner  of 
the  equity  of  redemption  is  entitled  to  the  possession  and  to 
the  rents  and  profits  of  the  land." 

Where  mortgaged  premises  are  sold  under  a  decree  of  fore- 
closure, the  owner  of  the  equity  of  redemption  w-ill  be  en- 
titled to  the  rents,  issues  and  profits  of  the  premises  until  the 
purchaser  becomes  entitled  to  possession;  and  where  the  rent 
is  payable  between  the  day  of  sale  and  the  time  when  the  pur- 
chaser will  be  entitled  to  the  possession,  such  rent  will  belong 
to  the  owner  of  the  equity  of  redemption,  and  not  to  the  pur- 
chaser at  the  sale.*^  But  it  has  been  held,  where  an  assignee 
in  bankruptcy  of  the  mortgagor,  by  order  of  the  bankrupt 
court,  joined  in  the  sale  of  the  mortgaged  premises  under  a 
power  of  sale  contained  in  the  mortgage,  that  the  purchaser 
at  such  sale  was  entitled,  as  against  the  assignee  in  bankrupt- 
cy, to  the  rents  and  profits  of  the  property  sold  for  the  period 


8°  The    New    York   court   of   ap-  ^^  Mitchell  v.  Bartlett,  51    N.   Y. 

peals,  in  the  case  of  Farmers'  Loan  447,  aff'g  52  Barb.  319;   Strong  v. 

and  Trust  Company  v.  Bankers  &  Dollner,  2  Sandf.  (N.  Y.)  444.    See 

Merchants  Telegraph  Company,  119  post,  §§  713,  718. 

N.  Y.  15,  23  N.  E.  173,  28  N.  Y.  S.  82  Cheney  v.   Woodruff,  45  N.  Y. 

R.  613,  say  that  a  judgment  of  fore-  98;  Whalin  v.  White,  25  N.  Y.  462 ; 

closure     providing    that    the    pur-  Miner  v.  Beekman,  11  Abb.  (N.  Y.) 

chaser  shall  be  entitled  to  the  pos-  Pr.  N.  S.  147,  42  How.  (N.  Y.)  Pr. 

session    on    the    production    of    his  33;  Astor  v.  Turner,  11  Paige  Ch. 

deed,  and  that  the  mortgagor  and  (N.    Y.)    436,    43    Am.    Dec.    766; 

their  receiver  shall  join  in  the  deed,  Clason  v.  Corley,  5  Sandf.   (N.  Y.) 

necessarily  implies  that  the  referee  447;  Whitney  v.  Allen,  21  Cal.  233. 

shall  give  to  the  purchaser  a  deed.  But  see  McDevitt  v.  Sullivan,  8  Cal. 

although  not  containing  any  express  592.      See    also    Peck    v.    Knicker- 

direction  to  that  effect.  backer  Ice  Co.  18  Hun  (N.  Y.)  183. 


§  682]  DELIVERING  DEED.  1005 

intervening  between  the  day  of  sale  and  the  day  of  the  con- 
confirmation  thereof  by  the  bankrupt  court.®^ 

Where  a  decree  of  foreclosure  directs  the  sale  of  the  prem- 
ises, and  that  the  purchaser  at  the  sale  be  let  into  possession 
upon  the  delivery  of  the  usual  referee's  deed,  the  purchaser 
will  be  entitled  to  a  writ  of  assistance  or  other  proper  process 
of  the  court,  requiring  the  delivery  of  the  premises  to  him, 
as  against  all  defendants  who  were  served  with  the  summons ; 
this  rule  also  prevails  as  against  a  defendant  who  is  not  men- 
tioned in  the  decree  by  name,  as  well  as  against  one  whose 
name  is  not  mentioned  in  the  officer's  deed.^*  Where  the  sale 
is  consummated  by  the  delivery  of  the  deed,  it  passes  the  entire 
estate  held  by  the  mortgagor  at  the  date  of  the  mortgage  as 
against  all  defendants.*^  The  right  of  the  purchaser  to  the 
possession  of  the  premises  under  his  deed,  will  not  be  affected 
by  the  fact  that,  pending  the  action,  the  plaintifif  executed  to 
one  of  the  defendants  a  conveyance  of  the  whole  of  the  prem- 
ises embraced  in  the  decree.*^ 

§  682.  Effect  and  force  of  referee's  deed. — It  is  provid- 
ed by  the  Code,"  that  a  conveyance  upon  a  sale  made  pur- 
suant to  a  final  judgment  in  an  action  to  foreclose  a  mortgage 
upon  real  property,  vests  in  the  purchaser  the  same  estate  only 
that  w^ould  have  vested  in  the  mortgagee,  if  the  equity  of  re- 
demption had  been  foreclosed.**  Such  a  conveyance  is  as  valid 
as  if  it  had  been  executed  by  the  mortgagor  and  the  mortgagee, 
and  is  an  entire  bar  against  each  of  them  and  against  each 
party  to  the  action  who  was  duly  summoned,*^  and  against 

83  Lathrop  v.  Nelson,  4  Dill.  C.  C.  87  n.  Y.  Code  Civ.  Proc.  §  1632. 

194.  See    also    Gruiicr   v.    Rnffner,    134 

^^ Frisbie  w.  Fogarty,ZA  C?i\.\\.  App.    Div.    837,    119    N.    Y.    Supp. 

^^  Mongtomery  v.  Middlcmiss,  21  942. 

Cal.  103,  81  Am.  Dec.  146;  Belloe  v.  ^^  Lawrence  v.  Delano,  3  Sandf. 

Rogers,  9  Cal.  125.  (N.   Y.)   333.     See  Bishop  v.   Van 

^6  Montgomery  v.  Middlemiss,  21  Winkle,  117  S.  W.  345   (Ky.) 

Cal.    103,   81   Am.    Dec.    146.       See  89  !„   New  York,  although  resti- 

Richards    v.    Smith,    88    Neb.    444,  tution  is  allowed  in  a  proper  case 

129  N.  W.  983.  to   a   defendant   who   has   not   ap- 


1006  MORTGAGE    FORECLOSURES.  [§    682 

every  person  claiming  from,  through  or  under  a  party  to  the 
action,  by  title  accruing  after  the  filing  of  the  notice  of  the 
pendency  of  the  action,^"  The  sale  of  the  mortgaged  prem- 
ises and  the  confirmation  thereof  by  the  court,  terminates  the 
right  of  the  owner  of  the  equity  of  redemption  to  pay  the  debt 
and  redeem  the  estate.^^ 

The  provision  of  the  Code,  declaring  a  conveyance  an 
"entire  bar,"  refers  to  rights  and  interests  in  the  equity  of  re- 
demption and  not  to  interests  paramount  to  the  title  of  both 
the  mortgagor  and  the  mortgagee.^^  Thus,  where  parties  hold- 
ing prior  mortgages  or  liens  are  not  made  parties  to  a  fore- 
closure, or  if  made  parties  and  no  purpose  is  indicated  in  the 
complaint  to  have  the  amount  of  their  incumbrances  ascer- 
tained and  paid  out  of  the  proceeds  of  the  sale,  their  prior 
liens  will  not  be  afTected.^^  And  a  purchaser  at  a  legal  tax 
sale  of  land,  upon  which  there  was  a  mortgage  at  the  time 
of  such  sale,  will  not  be  affected  by  a  subsequent  foreclosure 
of  such  mortgage  and  by  a  sale  of  the  mortgaged  premises, 
unless  he  is  made  a  party  to  the  foreclosure.^* 

It  is  thought  that  the  deed  of  a  master  in  chancery,  referee 
or  other  officer  making  the  sale  in  mortgage  foreclosure  pro- 
ceedings, executed  to  a  third  person,  at  the  request  of  the  real 
purchaser,  vests  the  title  to  such  land  in  such  third  person  and 
his  grantee,  as  against  the  real  purchaser  and  his  heirs.^^ 

peared  but  who  has  been  served  by  Smith,  9  N.  Y.  502,  61   Am.  Dec. 

publication,    the    title    to    property  706;   Fryer  v.   Rockefeller,  4  Hun 

sold  on  foreclosure  is  not  affected.  (N.  Y.)  800.     See  N.  Y.  Code  Civ. 

N.  Y.  Code  Civ.  Proc.  §  445.     See  Proc.  §  1632. 

also    Zarkowski    v.    Schroeder,    71  93  Bache  v.  Doscher,  67  N.  Y.  429, 

App.  Div.  526,  75  N.  Y.  Supp.  1021.  affirming  41  N.  Y.  Supr.  Ct.   (9  J. 

90  N.  Y.  Code  Civ.  Proc.  §  1632.  &   S.)    150.     See  Stanislaus   Water 

^^  Brown  v.  Frost,   10  Paige  Ch.  Co.   v.   Bachman,   152   Cal.   716,    15 

(N.  Y.)  243,  247.  L.R.A.(N.S.)  359,  93  Pac.  858.    See 

92  Rector  v.  Mack,  93  N.  Y.  488,  ante,  chap.  ix. 

45    Am.    Rep.   260.      See   Smith   v.  ^'^  Becker  v.  Howard,  66  N.  Y.  5, 

Roberts,  91    N.   Y.  470;   Emigrant  affirming  4  Hun   (N.  Y.)  359. 

Industrial   Savings   Bank   v.    Gold-  ^^  Robertson    v.    Sayre,    53    Hun 

man,   75    N.    Y.    127;    Rathbone   v.  (N.  Y.)  490,  25  N.  Y.  S.  R.  449,  6 

Hooney,   58   N.   Y.   463;   Lewis  v.  N.  Y.  Supp.  649. 


§  683] 


DELIVERING   DEED. 


1007 


The  supreme  court  of  Missouri,  in  the  case  of  Dodson  v. 
Lomax,^^  say  that  the  inclusion  in  a  sheriff's  deed  upon  fore- 
closure of  a  school  mortgage,  of  a  lot  included  in  the  mort- 
gage, but  not  sold,  is  a  mistake  which  will  be  corrected  in 
equity,  where  the  sheriff  was  ignorant  and  the  purchaser  cog- 
nizant thereof. 

§  683.  Estate  conveyed  and  interests  passed  by  referee's 
deed. — A  purchaser  at  a  mortgage  foreclosure  sale  ac- 
quires all  the  title  and  interest  of  both  the  mortgagor  and  the 
mortgagee  in  and  to  the  property .^'^     The  court  undertakes  to 


The  New  Jersey  Acts  of  i88i  and 
1882,  Sup  p.  Rev.  489,  490,  which 
subject  mortgaged  estates  to  con- 
ditions of  redemption  in  the  hands 
of  purchasers  at  foreclosure  sales, 
being  unconstitutional  as  applied  to 
antecedent  mortgages,  the  purchaser 
at  a  sale  under  proceedings  for  the 
foreclosure  of  a  mortgage  made 
prior  to  these  Acts  took  the  estate 
of  the  mortgagee  unaffected  by  the 
conditions  of  redemption  created 
by  those  Acts,  although  at  the  fore- 
closure sale,  enough  was  realized 
to  pay  the  prior  mortgage  in  full, 
and  a  small"  sum  upon  a  second 
mortgage,  which  was  made  after 
these  Acts  took  effect.  Champion 
V.  Hinkle,  45  N.  J.  Eq.  (18  Stew.) 
162,  16  Atl.  70,  12  N.  J.  L.  J.  87. 

96  21  S.  W.  25. 

^T  Rector  v.  Mack,  93  N.  Y.  488, 
45  Am.  Rep.  260.  See  Westbrook 
V.  Gleason,  79  N.  Y.  23;  Slattery  v. 
Schwannecke,  44  Hun  (N.  Y.)  75; 
McMillan  v.  Richards,  9  Cal.  365, 
70  Am.  Dec.  655 ;  Taylor  v.  Kearn, 
68  111.  339;  Hamilton  v.  State,  1 
Ind.  128;  Powesheik  County  v.  Dcn- 
nison,  36  Iowa,  244,  14  Am.  Rep. 
521 ;  Brown  v.   Tyler,  74  Mass.    (8 


Gray)  135,  69  Am.  Dec.  239;  Young 
V.  Brand,  15  Neb.  601;  Carter  v. 
Walker,  2  Ohio  St.  339.  The  pur- 
chaser at  a  foreclosure  sale  acquires 
the  rights  of  the  mortgagee,  so  far 
as  he  has  any  claim  or  interest  in 
the  premises  for  the  security  of  his 
debt,  and  also  so  much  of  the  equity 
of  redemption  as  is  not  bound  by 
the  lien  of  a  senior  incumbrance. 
Watson  V.  Dundee  Mortgage  and 
Trust  Investment  Co.  12  Oreg.  474. 
See  Sellwood  v.  Gray,  11  Oreg.  535, 
Ames  V.  Storer,  98  Wis.  372, 
67  Am.  St.  Rep.  813,  74  N.  W. 
101;  Leet  v.  Armbruster,  143 
Cal.  663,  77  Pac.  653 ;  Thompson 
V.  Bender,  51  Tex.  Civ.  App.  81, 
111  S.  W.  170;  Lone  Jack  Min- 
ing Co.  V.  Megginson,  82  Fed. 
89.  See  also  Alexander  v.  Grover, 
190  Mass.  462,  77  N.  E.  487;  Gamble 
V.  Caldwell,  98  Ala.  577,  12  So.  424 ; 
Martinez  v.  Lindsay,  91  Ala.  334,  8 
So.  787;  Bryan  v.  Pinney,  3  Ariz. 
412,  31  Pac.  548;  Clyne  v.  Benicia 
Wafer  Co.  100  Cal.  310.  34  Pac.  714; 
Robinson  v.  Thornton,  102  Cal.  675. 
34  Pac.  120;  Thorpe  v.  Kerns,  83 
Cal.  553,  20  Pac.  82,  23  Id.  691; 
Barnard  v.   Wilson,  74  Cal.  512,  16 


1008 


MORTGAGE    FORECLOSURES. 


[§  683 


dispose  of  the  interests  of  the  parties  to  the  suit  in  the  land, 


Pac.  307;  Myers  v.  Pierce,  86  Ga. 
786,  12  S.  E.  978;  Diiesterberg  v. 
Swartzel,  115  Ind.  180,  17  N.  E.  155; 
Austin  V.  Bowman,  81  Iowa,  277,  46 
N.  W.  1111;  Leavemvorth  Lodge, 
No.  2,  I.  O.  O.  F.  V.  Byers,  54  Kan. 
222i,  38  Pac.  261 ;  Bailey  v.  Fanning 
Orphan  School  (Ky.)  14  S. 
W.  908,  12  Ky.  L.  Rep.  644;  Land- 
reaux  v.  Louque,  43  La.  An.  234, 
9  So.  32;  Herman  v.  Fanning,  151 
Mass.  1,  23  N.  E.  493;  Chapin  v. 
Freeland,  142  Mass.  383,  56  Am. 
Rep.  701,  8  N.  E.  128;  Mority 
V.  St.  Paul,  52  Minn.  409,  54  N.  W 
380;  Jellison  v.  Holloran,  44  Minn 
199,  46  N.  W.  332;  Atkinson  v, 
Greaves,  70  Miss.  42,  11  So.  6i 
Lanier  v.  Mcintosh,  117  Mo.  508 
38  Am.  St.  Rep.  676,  23  S.  W.  787 
Meier  v.  Meier,  105  Mo.  411,  16  S 
W.  223;  Dodge  v.  Omaha  &  S.  W 
R.  Co.  20  Neb.  226,  29  N.  W.  936 
Henninger  v.  Herald,  53  N.  J.  Eq. 
(8  Dick.)  674,  29  Atl.  190;  Cham- 
pion V.  Hinkle,  45  N.  J.  Eq.  (18 
Stew.)  162,  16  Atl.  701;  M click  v. 
Pidcock,  44  N.  J.  Eq.  (17  Stew.) 
525,  15  Atl.  3,  6  Am.  St.  Rep.  901 ; 
Baldwin  v.  Howell,  45  N.  J.  Eq.  (18 
Stew.)  519,  15  Atl.  236;  Mount  v. 
Manhattan  Co.  43  N.  J.  Eq.  25,  9 
Atl.  114;  Hiles  v.  Fisher,  144  N.  Y. 
306,  39  N.  E.  2,Z7,  63  N.  Y.  S.  R. 
705,  43  Am.  St.  Rep.  762,  30  L.R.A. 
305;  Townsend  v.  Thomson,  139  N. 
Y.  152,  34  N.  E.  871;  Slattery  v. 
Schwbunecker,  44  Hun  (N.  Y.)  75; 
Moggats  v.  Coe,  44  Hun  (N.  Y.) 
31 ;  Hartley  v.  Meyer,  2  Misc.  56, 
20  N.  Y.  Supp.  351,  49  N.  Y.  S.  R. 
351 ;  Banfort  County  Lumber  Co.  v. 
Dail,  111  N.  C.  120,  15  S.  E.  941, 


rehearing  denied  112  N.  C.  350,  IS 
S.  E.  350,  17  S.  E.  587 ;  Gill  v.  Wes- 
ton, 110  Pa.  St.  312,  1  Atl.  921; 
Dyer  V.  Cranston  Print  Works  Co. 
17  R.  I.  774,  24  Atl.  827;  Ex  parte 
Boyce,  41  S.  C.  201,  19  S.  E.  495; 
Givins  v.  Carroll,  40  S.  C.  413,  42 
Am.  St.  Rep.  889,  18  S.  E.  1030; 
Kirber  v.  Moody,  84  Tex.  201,  19 
S.  W.  453 ;  Ryan  v.  Ferguson,  3 
Wash.  356,  28  Pac.  910;  Osborn  v. 
Glasscock,  39  W.  Va.  749,  20  S.  E. 
702. 

The  purchaser  of  the  title  of 
lands  sold  by  virtue  of  an  execu- 
tion issued  upon  a  decree  in  an 
action  for  the  foreclosure  of  a 
mortgage  takes  all  the  title  which 
the  mortgagor  had  and  which  was 
conveyed  by  such  mortgage  {Hen- 
ninger V.  Herald,  51  N.  J.  Eq.  (6 
Dick.)  74,  29  Atl.  190),  and  of  the 
wife  who  unites  in  the  mortgage, 
subject  to  the  rights  of  each  to  re- 
deem and  to  the  right  of  the  mort- 
gagor to  retain  possession  for  one 
year  from  the  sale  (Duesterberg  v. 
Swartzel,  115  Ind.  180,  17  N.  E. 
155),  and  may  recover  damages  for 
the  breach  of  the  covenant  of  war- 
ranty contained  in  the  deed  con- 
veying the  property  to  the  mort- 
gagor. Mygatt  v.  Coe,  44  Hun  (N. 
Y.)  31. 

A  purchaser  of  real  property  at 
sheriff's  sale  under  fieri  facias  in 
foreclosure  of  a  special  mortgage 
can  take  nothing  not  described  in 
the  mortgage  (Jones  v.  Lake,  43  La. 
An.  1024,  10  So.  204),  and  the  title 
created  by  a  deed  expressly  made 
subordinate  to  a  prior  trust  deed 
is  extinguished  by  a  sale  under  the 


§  683] 


DELIVERING   DEED. 


1009 


and  the  purchaser  acquires  those  interests  whatever  they  may 


latter  deed.  Meier  v.  Meier,  105 
Mo.  411,  16  S.  W.  223. 

A  channel  or  pipe  through  which 
water  has  been  furnished  to  a 
ranch,  for  more  than  five  years, 
from  the  mains  of  a  water  com- 
pany, pursuant  to  an  agreement  to 
furnish  the  same  in  consideration 
of  certain  water  rights,  constitutes 
an  appurtenance  to  the  ranch;  and 
the  right  to  it,  including  the  flow  of 
water  from  the  main,  passes  to  a 
purchaser  of  the  ranch  upon  a  fore- 
closure sale.  Clyne  v.  Benicia  Wa- 
ter Co.  100  Cal.  310,  34  Pac.  714. 

A  purchase  from  one  against 
whom  a  remedy  is  barred  by  time 
entitles  the  purchaser  to  stand  in 
as  good  a  position  as  his  vendor. 
Hence  a  purchaser  at  a  foreclosure 
sale  of  the  premises  will  be  protect- 
ed by  the  statute.  Chapin  v.  Free- 
land,  142  Mass.  383,  56  Am.  Rep. 
701,  8  N.  E.  128. 

Acquires  mortgage  interest  only 
where. — It  has  been  said  that  one 
who  purchases  real  property  at  a 
foreclosure  sale,  under  an  agree- 
ment that  the  title  shall  vest  in  him 
for  the  purpose  of  executing  a 
mortgage  to  one  paying  part  of  the 
purchase  money,  and  as  security  for 
the  repayment  of  money  advanced 
by  himself,  and  to  convey  the  prem- 
ises to  another,  acquires  only  a 
mortgage  interest  as  against  the 
latter.  Van  Vleck  v.  Enos,  88  Hun 
(N.  Y.)  348,  34  N.  Y.  Supp.  754. 

An  assignee  of  a  mortgage  of 
desert  lands  made  after  final  proof 
but  before  patent,  who  has  pur- 
chased the  lands  upon  foreclosure 
sale,  is  entitled  to  file  a  petition  to 
revive  the  original  judgment  on 
foreclosure,  under  Idaho  Rev.  Stat. 
Mortg.  Vol.  II.— 64. 


§  4498,  providing  for  such  action  by 
the  purchaser  of  property  at  a 
sheriff's  sale,  who  fails  to  recover 
possession  by  reason  of  irregulari- 
ties or  because  the  property  was  not 
subject  to  execution  and  sale,  where 
the  entry  of  the  mortgagor  is  can- 
celled by  the  land  office  in  proceed- 
ings begun  before  the  sale.  Cant- 
well  v.  McPherson,  2  Idaho,  1044, 
29  Pac.  102. 

Cannot  be  limited  to  life  estate 
by  schedule  of  bankrupt. — It  is 
thought  that  in  those  cases  where 
the  title  conveyed  by  a  trust  deed 
of  land,  the  grantor's  whole  inter- 
est in  which  was  afterwards  sold 
under  a  decree  on  a  joint  petition 
of  the  trustee  and  the  mortgagor's 
assignee  in  bankruptcy,  cannot  be 
limited  to  a  life  estate  by  a  state- 
ment in  the  grantor's  schedule  or  in 
his  assignee's  original  separate  pe- 
tition, that  his  interest  was  that  of 
a  life  estate.  Alkinson  v.  Greaves, 
70  Miss.  42,  11  So.  688. 

Fee  in  equity  of  redemption. — 
The  purchaser  of  mortgaged  prem- 
ises conveyed  in  trust,  at  a  sale 
in  a  foreclosure  suit  to  which  the 
cestuis  que  trust  were  parties,  ac- 
quires the  estate  of  the  mortgagor 
and  also  the  fee  in  the  equity  of 
redemption.  Melick  v.  Pidcock,  44 
N.  J.  Eq.  (17  Stew.)  525,  6  Am. 
St.  Rep.  901,  15  Atl.  3. 

Mistake  of  clerk  of  court — Effect 
on  purchaser's  title  and  estate. — The 
title  of  a  purchaser  at  a  foreclosure 
sale  of  lands  is  not  affected  by  a 
mistake  of  the  clerk  of  the  court 
(which  was  corrected  on  motion) 
in  entering  in  the  draft  of  the  judg- 
ment on  the  order  book  the  figures 
$200   instead  of   $2,000,   for  which 


1010 


MORTGAGE    FORECLOSURES. 


[§  683 


be.®'  And  it  has  been  said  that  a  sheriff's  sale  of  real  estate, 
under  a  judgment  recovered  by  a  scire  facias  upon  a  mortgage, 
passes  to  the  purchaser  the  title  to  the  mortgaged  premises 
discharged  of  all  equities, — even  of  those  of  which  the  mort- 
gagee had  no  notice  or  knowledge.  ®® 


the  lands  were  actually  sold.  Viss- 
man  v.  Bryant,  14  Ky.  L.  Rep.  874, 
21  S.  W.  759. 

In  New  Jersey  the  title  to  lands 
acquired  under  foreclosure  of  a 
mortgage  to  the  sinking  fund  com- 
missioners of  the  State  of  New 
Jersey  is  superior  to  that  of  a  pur- 
chaser under  a  sale  made  under  the 
"Martin  Act"  for  taxes,  some  of 
which  became  a  lien  prior  and  oth- 
ers subsequent  to  the  date  of  the 
mortgage,  the  tax  sale  being  made 
to  satisfy  the  combined  taxes.  Piigh 
V.  Sinking  Fund  Comrs.  53  N.  J.  L. 
(24  Vr.)  629,  23  Atl.  270. 

One  who  has  no  title,  legal  or 
equitable,  to  a  tract  of  land,  cannot 
by  acts  in  pais  confirm  the  sale  of 
any  interest  therein  made  under  a 
decree  in  chancery ;  and  even  a  pur- 
chaser of  the  equity  of  redemption 
thereof,  pending  a  suit  by  one 
claiming  title  through  such  sale,  is 
not  affected  by  the  acts  in  pais  of 
such  stranger  to  the  title.  Brooks 
V.  Kelly,  63  Miss.  616.  And  where 
a  man  who  had  taken  the  title  to 
property  in  which  he  had  only  a 
one-third  interest  gave  a  purchase- 
money  mortgage  upon  it,  and  after 
wards,  upon  payment  of  one-third 
of  the  price,  obtained  a  release  of 
an  undivided  one-third,  his  interest 
in  that  third  becomes  absolute  upon 
subsequent  foreclosure  expressly 
excepting  the  part  released  to  him. 
The  purchaser  at  the  sale  obtains  no 
interest  in  that  third ;  and  deeds  to 
him  from  the  persons  originally  en- 
titled   to   the   other   two-thirds    are 


of  no  effect.  Central  Bank  v.  Early, 
10    Sadler    (Pa.)    526,    14  Atl.  427. 

In  a  case  where  land  was  con- 
veyed to  the  trustee  to  secure  debts, 
and  afterwards  a  third  party  took  a 
conveyance  of  the  equity  of  redemp- 
tion, and  paid  off  the  debts,  and 
then  sold  the  land  to  a  person  who 
took  possession.  The  first  vendee 
then  caused  the  trustee  to  sell  the 
land  under  the  terms  of  the  deed 
in  order  to  get  the  legal  title  out  of 
him,  and  the  court  held  that  the 
purchaser  at  such  sale  with  full 
notice  of  the  facts,  got  no  title,  and 
no  estoppel  arose  against  the  owner 
of  the  equity.  Mayo  v.  Leggett,  96 
N.  C.  237,  1  S.  E.  622. 

38  Leech  v.  Hillsman,  8  Lea 
(Tenn.)  747;  Zollman  v.  Moore,  21 
Gratt.  (Va.)  313;  Tallman  v.  Ely, 
6  Wis.  244;  Gillett  v.  Eaton,  6  Wis. 
30;  Heinroth  v.  Frost,  250  111.  102, 
95  N.  E.  65;  Watson  v.  Jones,  41 
Fla.  241,  25  So.  678;  Arterburn  v. 
Beard.  86  Neb.  7Z3,  126  N.  W.  379; 
Currier  v.  Tcske,  84  Neb.  60,  133 
Am.  St.  Rep.  602,  120  N.  W.  1015 ; 
Kerr  V.  McCrcary,  84  Neb.  315,  120 
N.  W.  1117;  People's  Trust  Co.  v. 
Tonkonogy,  144  App.  Div.  Z2>Z,  128 
N.  Y.  Supp.  1055 ;  Wimpfheimer  v. 
Prudential  Ins.  Co.  of  America,  56 
N.  J.  Eq.  585,  39  Atl.  916;  Hart 
V.  Bcardsley,  67  Neb.  145.  93  N.  W. 
423.  See  Bushey  v.  National  State 
Bank  of  Camden,  72  N.  J.  Eq.  466, 
66  Atl.  592. 

^^Landell's  Appeal  105  Pa.  St. 
152.  A  foreclosure  deed  to  the 
mortgagee  gives  him  the  same  es- 


683] 


DELIVERING    DEED. 


1011 


The  purchaser  takes  the  title  of  the  mortgagor  and  the 
mortgagee  as  it  existed  at  the  time  of  the  execution  of  the 
mortgage,  subject  to  all  its  qualifications,^  because  the  vendee 
of  mortgaged  premises  under  a  sheriff's  deed  stands  upon  the 
equities  of  the  mortgagee.^  Easements  used  by  the  mortgagor 
pass  under  a  sheriff's  deed  as  an  appurtenance.^  But  a  deed 
cannot  pass  a  greater  interest  than  that  which  is  authorized 
by  the  judgment,  although  by  its  terms  it  may  include  prem- 
ises mentioned  in  the  mortgage,  but  which  were  subsequently 
released  by  the  mortgagee  from  the  lien  thereof.* 

If  his  title  was  a  mere  equity  or  a  right  to  own  the  prop- 
erty upon  the  payment  of  the  purchase  price,  such  interest  is 
all  that  can  be  transferred  by  the  foreclosure.^  If  the  mort- 
gage was  upon  a  lease  for  a  term  of  years,  the  purchaser  be- 


tate  as  the  foreclosure  of  the  equity 
of  redemption,  and  is  as  effectual 
against  the  owner  of  the  equity  as 
if  he  executed  such  deed.  Riiggles 
V.  First  Nat.  Bank  of  Centreville, 
43  Mich.   192. 

1  Vroom  V.  Ditmas,  4  Paige  Ch 
(N.  Y.)  526,  531;  McMillan  v 
Richards,  9  Cal.  365,  70  Am.  Dec 
655;  Taylor  v.  Kearn,  68  III.  339 
Hamilton  v.  State,  1  Ind.  128; 
Powesheik  County  v.  Dennison,  36 
Iowa,  244,  14  Am.  Rep.  521 ;  Mars- 
ton  V.  MarstOH,  45  Me.  412;  Haynes 
V.  Wellington,  25  Me.  458;  Brown 
V.  Tyler,  7A  Mass.  (8  Gray)  135,  69 
Am.  Dec.  239;  Ritger  v.  Parker, 
62  Mass.  (8  Cush.)  145,  54  .^.m. 
Dec.  744;  Carter  v.  Walker,!  Ohio 
St.  339;  Frische  v.  Kramer.  16 
Ohio,  125,  47  Am.  Dec.  368;  De- 
Haven  V.  Laudell,  31  Pa.  St.  120; 
West  Branch  Bank  v.  Chester,  11 
Pa.  St.  282,  51  Am.  Dec.  547 ;  Hod- 
son  V.  Treat,  7  Wis.  263.  See  Reid 
V.  Town  of  Long  Lake,  44  Misc. 
370,  89  N.  Y.  Supp.  993 ;  Common- 


wealth Mortgage  Co.  v.  De  Waltoff, 
135  App.  Div.  33,  119  N.  Y.  Supp. 
781 ;  Gilchrist  v.  Foxen,  95  Wis.  428, 
70  N.  W.  585 ;  Kilgour  v.  Scott.  101 
Fed.  359.  See  also  Sheridan  v. 
Schimpf,   120  Ala.  475,  24  So.  940. 

But  see  New  York  Water  Co.  v. 
Crow.  110  App.  Div.  32,  96  N.  Y. 
Supp.  899.  where  the  mortgage  cov- 
ered after  acquired  property. 

2  Berryhill  v.  Kirchner,  96  Pa.  St. 
489. 

^Johnson,  as  trustee,  etc.  v.  Sher- 
man County  Irrigation,  Water 
Power  &  Improvement  Co.  71  Neb. 
452,  98  N.  W.  1096;  Richmond  v. 
Bennett,  205  Pa.  470.  55  Atl.  17; 
Stanislaus  Water  Co.  v.  Bachman, 
152  Cal.  716,  15  L.R.A.(N.S.)  359, 
93  Pac.  858.  See  also  Dahlberg  v. 
Haeberle,  71  X.  J.  Law,  514,  59  Atl. 
92. 

'^  Laverty  v.  Moore,  32  Barb.  (N. 
Y.)   347,  affirmed  33  N.  Y.  658. 

5  Stewart  v.  Hutchinson,  29  How. 
(N.  Y.)    Pr.  181. 


1012  MORTGAGE    FORECLOSURES.  [§    683 

comes  the  assignee  of  the  lease.®  If  the  property  has  been 
previously  sold  by  the  mortgagor  upon  contract,  and  his 
vendee  is  in  possession,  the  purchaser  will  take  the  position 
of  the  mortgagor  as  to  the  vendee;  and  upon  default  in  the 
payment  of  the  money  due  upon  the  contract,  he  may  turn 
him  out  of  possession.' 

And  where  persons  holding  prior  liens  are  not  made  parties 
to  the  action,  or,  if  made  parties,  no  purpose  is  indicated  in 
the  complaint  to  have  their  liens  ascertained  and  paid  out  of 
the  proceeds  of  the  sale,  their  rights  will  not  be  cut  off.' 

A  purchaser  under  a  foreclosure  decree  acquires  no  interest 
as  against  an  owner  of  the  fee  who  was  not  made  a  party,® 
and  a  commissioner's  deed  on  a  foreclosure  sale  cannot  in- 
crease the  rights  originally  granted  by  the  mortgage ;  nor  can 
the  owner  of  the  equity  of  redemption  and  other  parties  to 
the  foreclosure  stipulate  away  the  rights  of  the  heirs  or  legal 
representatives  of  the  deceased  mortgagor.^" 

It  is  thought  that  a  purchaser  at  a  foreclosure  sale  is  not 
fixed  with  constructive  notice  of  an  assignment  of  the  equity 
of  redemption  in  any  of  the  mortgaged  property  by  any  of 
the  successive  holders  of  the  mortgage,  nor  is  he  bound  to 

^Kearney  v.  Post,  1  Sandf.   (N.  See  Watson  v.  Jones,  41  Fla.  241, 

Y.>  105.  25  So.  678;  Western  Iron  Works  v. 

'C/mi^  V.  A^'om,  31  Barb.  (N.  Y.)  Montana    Pulp    &    Paper    Co.    30 

511.     See  Smith  v.  Roberts,  91  N.  Mont.  550,  77  Pac.  413.     See  ante, 

Y.  470;   Emigrant  Industrial  Sav-  chap.  ix. 

ings  Bank   v.   Goldman,   75    N.   Y.  ^  Fowler  v.  Lilly,  122  Ind.  279,  23 

127;  Rathbone  v.  Hooney,  58  N.  Y.  N.  E.  767;  Watts  v.  Julian,  122  Ind. 

463 ;  Lewis  v.  Smith,  9  N.  Y.  502,  124,  23  N.  E.  698. 

61  Am.  Dec.  706;  Dwight  v.  Phil-  But  the  purchaser  in  that  event 

lips,  48  Barb.   (N.  Y.)   116.  becomes  an  assignee  of  the  lien  and 

8  Emigrant     Industrial      Savings  may  foreclose  it.    Stough  v.  Badger 

Bank   V.   Goldman,   75    N.   Y.    127;  Lumber  Co.   70   Kan.  713,   79   Pac. 

Bache   v.   Doscher,  67   N.   Y.   429,  7Z7. 

affirming   41    N.    Y.    Supr.    Ct.    (9  ^^  Morgan    v.    Meuth,    60    Mich. 

J.  &  S.)  150;  Becker  v.  Howard,  66  238,  27  N.  W.  509. 
N.  Y.  5,  affirming  4  Hun   (N.  Y.) 
359;  Walsh  v.  Riitger's  Fire  Insur- 
ance Co.  13  Abb.  (N.  Y.)  Pr.  33. 


§  683]  DELIVERING  DEED.  1013 

inquire  in  regard  to  it;  but  all  that  he  is  required  to  do  is 
to  ascertain  from  the  record  or  by  inquiring  of  the  mortgagor 
whether  the  debt  has  been  paid  or  the  mortgage  released. -^^ 
A  mortgagor  of  lands  in  fee,  who  had  previously  conveyed  a 
small  piece  of  the  land  upon  condition  that  the  grantee  would 
erect  and  maintain  a  well,  with  tank,  and  do  other  specified 
things,  is  estopped,  as  against  the  mortgagee,  from  denying 
that  the  latter,  who  purchased  at  the  foreclosure,  is  entitled  to 
the  whole  lot,  where,  after  the  well  and  tank  were  construct- 
ed, it  was  closed  and  the  tank  removed,  and  the  grantee  ceased 
to  occupy  the  land  conveyed. ^^  Neither  can  an  owner  of  land 
on  both  sides  of  a  stream,  subject  to  a  mortgage  upon  the 
land  upon  one  side  of  the  stream,  which  includes  the  right  to 
half  the  water,  by  raising  the  dam  and  diverting  the  whole  of 
the  water  to  uses  upon  the  other  side,  and  thus  prevent  a  pur- 
chaser upon  a  sale  under  the  foreclosure  of  the  mortgage  from 
acquiring  a  right  to  half  the  water."  From  what  has  been 
said  above  it  follows  as  a  corollary  that  the  purchaser  at  a  fore- 
closure sale  of  the  undivided  interest  of  a  tenant  in  common 
in  lands  takes  an  undivided  interest  in  every  part  of  the  prem- 
ises, and  does  not  become  sole  owner  of  any  definite  subdivi- 
sion thereof.^*  In  short,  the  purchaser  at  a  mortgage  fore- 
closure sale  becomes  the  absolute  owner  of  the  premises  in 
fee  simple,  where  the  mortgagor  had  such  an  estate  in  the 
property.  A  great  many  questions  relative  to  the  rights  and 
interests  of  such  purchaser  have  been  discussed  and  decided 
by  the  courts  in  recent  years.  For  convenience  of  collation 
they  have  been  divided  into  groups,  and  those  groups  here  fol- 
low arranged  in  as  nearly  alphabetical  order  as  is  practicable. 

^^  Beaufort  County  Lumber  Co.  v.  ^^  Trope   v.    Kerns,   83    Cal.    553, 

Bail,  112  N.  C.  941,  17  S.  E.  527,  20  Pac.  82,  23  Pac.  691. 

112  N.  C.  350,  denying  rehearing  in  ^^  Dyer  v.  Cranston  Print  Works 

111  N.  C.   120,   15  S.  E.  941.     See  Co.  17  R.  I.  774,  24  Atl.  827. 

also  Pinney  v.  Merchants'  National  '^'^  Myers  v.  Pierce,  86  Ga.  786,  12 

Bank,  71   Ohio   St.   173,   72   N.   E.  '  S.  E.  978. 


1014  MORTGAGE    FORECLOSURES.  [§    684 

§  684.  Same — Assessments — Condemnation  and  dam- 
age funds. — Where  there  has  been  a  payment,  under  a 
decree  by  a  referee  in  foreclosure,  of  a  local  assessment  which 
is  an  apparent  lien  upon  the  mortgaged  premises,  out  of 
the  proceeds  of  the  mortgage  sale,  is  equivalent  to  a  payment 
by  the  owner  of  the  equity  of  redemption,  and  will  entitle 
such  owner,  on  the  subsequent  vacating  of  the  assessment, 
to  recover  from  the  municipality  the  amount  so  paid.*^  It 
has  been  said  that  the  foreclosure  of  mortgages  upon  land 
does  not  pass  the  title  to  a  fund  arising  from  a  prior  condem- 
nation of  a  water  right  appurtenant  to  the  land,  or  change 
the  manner  of  distribution.^®  But  it  seems  that  a  mortgagee 
who  purchases  the  mortgaged  premises  at  foreclosure  sale 
for  the  full  amount  of  the  mortgage  debt  is  entitled,  after 
the  expiration  of  the  time  for  redemption,  without  redemption 
having  been  made,  to  the  damages  awarded  for  a  street  im- 
provement, the  assessment  for  which  was  made  after  the 
foreclosure  sale,  although  the  proceedings  were  instituted 
before   the  foreclosure." 

§  685.  Same — Assignee  of  mortgagee — Purchaser. — It 

is  thought  that  a  purchaser  in  good  faith  and  for  value  from 
a  mortgagee  who,  upon  an  attempted  foreclosure  and  sale 
bid  in  the  property,  becomes  the  assignee  of  the  mortgage, 
where  the  decree  was  a  nullity,  and  his  possession  is  that  of  a 
mortgagee  in  possession  after  condition  broken,  which  he  is 
entitled  to  retain  as  against  heirs  of  the  mortgagor  or  their 

15  Brehm    v.    Mayor,    etc.    New  condemnation  proceedings  is  super- 

York,  104  N.  Y.  186,  10  N.  E.  158.  ior   to    the    rights    of    the    grantee 

^^  Re   Rochester,    136    N.    Y.    83,  of   the   purchaser   at  a   sale   under 

32  N.  E.  702,  19  L.R.A.  161.  49  N.  a  subsequent  foreclosure  of  a  mort- 

Y.  S.  R.  86.    See  Miller  v.  Board  of  gage  on  the  property.     Gates  v.  De 

Miss.  Levee   Com'rs.  78  Miss.  201.  La  Mare.  49  N.  Y.  S.  R.  775.  20  N. 

28  So.  834;  Matter  of  Wasliington  Y.  Supp.  837. 

Ave.  34  Misc.  655,  70  N.  Y.  Supp.  ^i  Moritz   v.    St.   Paul,   52   Minn 

599.  409,  54  X.  W.  370. 

Attorney's  lien  upon  an  award  in 


§  686]  DELIVERING  DEED.  1015 

grantee.^'  But  it  would  seem  that  the  assignees  of  a 
purchaser  at  a  mortgage  sale  void  as  being  made  under  a 
judgment  obtained  by  the  mortgagee  against  himself  as  ad- 
ministrator of  the  mortgagor,  though  not  chargeable  by  the 
identity  of  the  name  with  notice  that  the  mortgagee  and 
administrator  were  the  same  person,  and  of  the  consequent  in- 
validity of  the  judgment,  acquire  no  title  as  against  the  heirs 
of  the  mortgagor,  in  the  absence  of  any  act  or  failure  on  the 
part  of  the  latter  creating  an  estoppel. ^^ 

Where  a  mortgagee  buys  the  land  at  the  sale,  having  pre- 
viously quit-claimed  his  interest  to  a  third  person,  he  becomes 
trustee  of  the  land  for  his  grantee.^" 

§  686.  Same — Bona  fide  purchaser. — It  has  been  said 
that  the  title  of  a  bona  fide  purchaser  for  value  without  no- 
tice on  a  mortgage  sale  is  not  affected  by  the  fact  that  the 
holder  of  the  mortgage  had  prevented  a  tender  bv  refusing 
to  accept  payment,  except  on  conditions  which  he  had  no  right 
to  make.^^  And  the  possession  of  a  bona  fide  grantee  of  a 
purchaser  at  a  void  foreclosure  sale  having  continued  after 
the  expiration  of  the  time  of  redemption,  his  title  becomes 
absolute;  and  his  subsequent  failure  to  keep  up  his  improve- 
ments, or  to  cultivate  or  occupy  the  premises,  will  not  affect 
his  right  to  the  land  or  the  possession. ^^ 

It  is  held  by  the  supreme  judicial  court  of  Massuchusetts, 
in  Hermans  v.  Fanning.^^  that  in  a  case  where  the  insurance 
on  mortgaged  premises  is  paid  to  the  mortgagee  on  receipts 
from  him  and  also  from  the  owner  of  the  equity  of  redemption, 
who   is  induced  to  sign  a   receipt  by  an  assignment  of   the 

'^^  Bryau    v.   Piitney.  3    Ariz.   412,  ^'^  Holland  v.  Citizens'  Sav.  Bank, 

31   Pac.  548.     See  Jones  v.  Standi-  16  R.  I.  734.  19  Atl.  654,  8  L.R.A. 

ferd,  69  Kan.  513,  77  Pac.  271.  553. 

^^  Bryan  v.  Pinney.  3  Ariz.  412,  31  ^^Jellison   v.   Holloran,  44   Minn. 

Pac.  548.  199,  46  N.  W.  332. 

^^  Gottlieb  V.  City  of  New  York.  23  151  Mass.  1,  23  N.  E.  493. 
128  App.  Div.  148,  112  X.  Y.  Supp. 
545. 


1016  MORTGAGE    FORECLOSURES.  [§    687 

mortgage  to  his  brother,  he  himself  paying  the  balance  due 
on  the  mortgage,  and  his  brother  subsequently  assigns  the 
mortgage  to  one  who  enters  and  sells  the  lands  under  a  power 
of  sale  in  the  mortgage, — a  bona  fide  purchaser  at  the  sale 
acquires  a  good  title  as  against  a  purchaser  from  the  owner 
of  the  equity  of  redemption. 

A  purchaser  at  a  foreclosure  sale  who  has  not  parted  with 
consideration  is  not  deemed  a  bona  fide  purchaser.^*  The  doc- 
trine of  caz'eat  emptor  applies  to  a  foreclosure  sale.^^ 

§  687.  Same — Community  property. — The  doctrine  of 
community  property,  we  have  already  seen,^^  prevails  in  many 
of  the  states,  carved  out  of  the  territory  acquired  by  the 
"Louisiana  Purchase,"  in  which  the  civil  law.  instead  of  the 
common  law,  forms  the  basis  of  the  judicial  system.  It  is 
said  that  a  sale  of  community  property  upon  foreclosure  of 
a  special  mortgage  held  by  a  community  creditor,  evidenced  by 
an  authentic  act  importing  a  confession  of  judgment  and  con- 
taining the  non-alienation  clause,  will  convey  a  valid  title  to 
a  purchaser,  although  foreclosed  in  executory  proceedings 
against  the  surviving  husband  alone.^'  And  in  Washington, 
upon  a  sale,  under  a  decree  of  the  court,  of  mortgaged  com- 
munity property  under  the  statute,^^  the  community  title  is 
sold;  and  the  execution  of  a  deed  purporting  to  convey  only 
the  right  of  the  deceased  member  of  the  community  therein 

^^  Richardson    v.     Stephens,     122  ton    v.     Taylor,    35    Neb.    466,     18 

Ala.  301,  25  So.  39.    For  other  cases  L.R.A.  88,  37  Am.  St.  Rep.  441,  53 

where  the  purchaser  was  held  not  N.  W.  418;  Louisville  &  Nashville 

to   be    a    bona  fide   purchaser,    see  R.  R.  Co.  v.  Illinois  Central  R.  R. 

Ellis  V.  Allen,  99  Wis.  598,  75   N.  Co.  174  111.  448,  51  N.  E.  824;  Craw- 

W.  949;  Connolley's  Ex'r  v.  Beckett,  ford  v.  Foreman,  127  Iowa,  661,  103 

105    S.    W.    446    (Ky.)  ;    Gewin   v.  N.  W.  1000.     See  Cooper  v.  Ryan, 

Shields,  167  Ala.  593,  52  So.  887.  73  Ark.  37,  83  S.  W.  328. 

25  Watson  V.  Jones,  41   Fla.  241,  26  See  ante,  §  628. 

25     So.     678;    Fidelity    Insurance,  ^"^  Landrcaux   v.   Lougiie,  43   La. 

Trust  &  Safe-Deposit  Co.  v.  Roa-  Ann.  234,  9  So.  32. 

noke  Iron  Co.  84  Fed.  744;   Nor-  28  Wash.  Code,  1881,  §  1524. 


689] 


DELIVERING   DEED. 


1017 


will  not  deprive  the  purchaser  of  his  right  to  the  entire  prem- 
ises.^^ 


§  688.  Same — Error  and  fraud. — The  general  rule  is 
that  a  purchaser  in  good  faith  and  for  value  of  land  at  a 
foreclosure  sale,  cannot  be  divested  of  title,  even  though  gross 
error  and  fraud  by  others,  intervened  in  the  procurement  of 
the  decree  and  sale.^° 


§  689.  Same — Emblements  and  ice. — A  purchaser  at  a 
foreclosure  sale  acquiring  the  title  in  fee  simple,  is  entitled  to 


29  Ryan  v.  Ferguson,  3  Wash.  356, 
28  Pac.  910. 

30  Swift  V.  Yanaway,  153  111.  197, 
38  N.  E.  580.  In  this  case  it  was 
insisted  that  there  was  collusion 
and  fraud  between  Henderson,  the 
then  guardian  of  the  plaintiffs  in 
error,  and  one  Gilfillin,  in  procur- 
ing the  decree  of  foreclosure.  The 
court  say: 

"It  is  a  fundamental  doctrine  that 
fraud  will  not  be  presumed,  but 
must  be  proved.  True,  fraud  can 
rarely  be  established  by  direct  evi- 
dence, and  must,  ordinarily  be 
proved  by  facts  and  circumstances 
shown  which  raise  the  inference 
that  fraud  was  perpetrated  *  *  * 
The  bare  fact  that  the  record  dis- 
closes that,  by  agreement  of  the 
guardian  and  Gilfillin,  the  decree 
was  to  be  rendered  for  $500,  to  be 
paid  in  installments  of  $300  and 
$200,  is,  in  view  of  the  facts  shown, 
insufficient  to  raise  the  inference 
that  it  was  fraudulently  done.  If 
entitled  to  the  decree  foreclosing 
the  deed  as  a  mortgage,  to  which 
the  court  found  he  was  entitled,  no 
reason  is  apparent  why  Gilfillin 
should  not  have  obtained  a  decree 
for  the  full  amount  of  his  allow- 


ance by  the  county  court  of  Cum- 
berland county.  That  he  consented 
to  take  a  decree  for  less  rather 
rebuts  than  raises  an  inference  that 
he  sought  to  overreach,  or  obtain 
an  unconscionable  advantage,  in 
that  proceeding.  It  is  sufficient  to 
say,  upon  the  whole  record,  it  does 
not  appear  that  fraud,  such  as 
ought,  under  the  rules  of  chancery 
practice,  to  impeach  or  set  aside  the 
decree,  is  shown.  More  especially 
must  this  be  held  in  view  of  the 
fact  that  the  defendant  in  error, 
Yanaway,  so  far  as  appears  by  this 
record,  was  a  bona  fide  purchaser 
at  the  sale  subsequently  made  under 
such  decree.  There  is,  we  think, 
a  total  failure  to  connect  him  with 
any  fraud  or  collusion  in  the  pro- 
curement of  the  decree,  or  in  mak- 
ing the  sale  thereunder.  Yanaway 
being,  as  we  hold,  a  purchaser  of 
said  eighty-acre  tract  of  land,  in 
good  faith  and  for  value,  cannot 
be  disturbed,  or  divested  of  his  title, 
even  though  gross  error  and  fraud 
by  others,  intervened  in  the  pro- 
curement of  the  decree  and  sale, 
Sibert  v.  Throop,  77  111.  43;  Wad- 
hams  V.  Gay,  Th  111.  415." 


1018  MORTGAGE    FORECLOSURES.  [§    690 

have  and  receive  all  the  rights  and  privileges  going  therewith. 
This  includes,  of  course,  a  right  to  the  emblements ;  '^  but 
where  crops  and  emblements  have  been  severed  before  the  com- 
pletion of  the  sale  and  delivery  of  the  deed,  they  cease  to  be 
a  part  of  the  realty  and  do  not  pass  therewith. ^'^ 

Ice  upon  ponds  and  streams  is  in  the  nature  of  an  emble- 
ment.^^ So  long  as  it  remains  in  its  original  state  and  at- 
tached to  the  land  at  the  banks  of  the  stream  or  pond,  it  is 
real  property^*  and  passes  by  a  conveyance  of  the  land;  but 
when  the  ice  has  been  severed  and  harvested,  it  becomes  per- 
sonal property,  and  does  not  pass  with  the  land.  Thus  it  has 
been  said  that  a  mortgagee  who  becomes  the  purchaser  on  fore- 
closure is  not  entitled  to  ice  cut  by  a  lessee  of  the  mortgagor 
before  foreclosure,  although  the  house  in  which  it  was  stored, 
the  land  on  which  the  house  was  situated  and  the  pond  from 
which  the  ice  was  cut,  were  all  sold  under  the  mortgage.^* 
Hence  a  mortgagee  and  purchaser  on  foreclosure  sale  of  ice 
houses  and  of  the  right  to  cut  ice  from  a  pond  does  not  ac- 
quire title  to  ice  cut  and  stored  in  the  ice  houses  by  the  lessee 
of  the  mortgagor  prior  to  the  foreclosure  sale.^® 

§  690.  Same — General    creditors    of    Mortgagor. — The 

general  rule  is  that  assets  derived  from  the  sale  of  mortgaged 
premises  on  the  foreclosure  of  the  mortgage  become,  as  re- 
gards creditors,  the  substitute  for  the  property  sold,  and  the 
claims  of  creditors  are  transferred  by  the  sale  to  the  funds 
derived  from  such  sales,  and  the  purchaser  takes  the  land 
freed  from  the  claims  of  general  creditors.^'     Such  sale  will 

3^  See  post,  §  717,  also  1  Kerr  on  to  the  first  comer  each  season.    See 

Real  Prop.  §  50.  1  Kerr  on  Real  Prop.  §  74. 

32  See   1   Kerr  on   Real   Prop.   §§  3^  See  1  Kerr  on  Real  Prop.  §  68. 
71-73.  35  Gregory  v.  Rosenkrans,  72  Wis. 

33  The  "great  ponds"   of    Massa-  220,  1  L.R.A.  176.  39  N.  W.  378. 
chusetts  and  other  states  are  an  ex-  ^^  Gregory  v.  Rosenkraus,  78  Wis. 
ception  to  the  rule.     The  ice  upon  451.  47  N.  W.  832. 

these  belongs  by  custom  and  statute  37  yuas  v.  Page,   106  N.  Y.  439. 


§  691]  DELIVERING  DEED.  1019 

prevent  a  subsequent  levy  of  attachment  against  the  debtor 
from  having  any  effect,  although  the  deed  is  not  given  until 
subsequent  to  the  attachment.'®  Consequently  the  purchaser  at 
a  mortgage  sale  is  not  bound  by  an  action  against  the  mort- 
gagor involving  the  title  to  the  premise  or  by  notice  of  its 
pendency,  where  he  is  not  seasonably  brought  in  as  a  party, 
and  the  mortgagees  are  not  made  parties  until  after  the  fore- 
closure.'^ 

Sale  on  the  foreclosure  of  a  mortgage  which  is  a  prior  and 
paramount  lien  will  pass  the  title  to  the  land  free  from  a  subse- 
quent judgment  lien,  unless  the  land  was  redeemed  from  the 
foreclosure  sale.*"  And  it  has  been  said  that  purchasers 
claiming  title  under  the  assignee  of  a  mortgage  executed  prior 
to  a  judgment  against  the  mortgagor,  and  who  were  bona  fide 
purchasers  for  value  without  notice  other  than  the  judgment 
and  execution  thereon,  hold  by  a  title  superior  to  that  of  a 
purchaser  at  a  sale  upon  execution  under  the  subsequent  judg- 
ment.*^ 

§  691.  Same — Invalid  mortgage. — A  mortgage  which 
is  invalid  for  any  reason,  carries  with  it  no  interest  or  rights, 
and  a  purchaser  on  foreclosure  will  acquire  no  title  to  the 
land  sold.*^  Thus  it  has  been  said  that  on  the  foreclosure  of 
a  mortgage  given  by  a  married  woman  and  her  husband  upon 
property  devised  to  her,  to  her  sole  and  separate  use  free  from 
the  interference  or  control  of  her  husband,  and  to  her  heirs 
and  assigns  forever,  with  no  further  provision  in  regard  to 
alienation  by  her,  the  purchaser  gets  no  title  thereunder,  since 
the  mortgage  is  void,  and  a  judgment  thereon  is  also  void.*' 

13  N.  E.  743.    See  Chicago.  R.  I.  &  « Martinez   v.    Lindsay.   91    Ala. 

P.  R.  Co.  V.  Howard,  74  U.  S.   (7  334,  8  So.  787. 

Wall.)  392,  19  L.  ed.  117.  ^^  Richardson    v.     Stephens,     122 

38  Robinson  v.  Thornton.  102  Cal.  Ala.   301,  25    So.  39.     See    Way   v. 
675,  34  Pac.   120.  Scott,  118  Iowa,  197,  91  N.  W.  1034. 

39  Hokanson      v.     Gudenson,     54  *3  Hays  V.   Leonard,    10    Pa.    Co. 
Minn  499.  40  Am.  St.  Rep.  334,  56  Ct.  648. 

N.  W.  172. 

^^  Austin    V.    Boivnian,    81    Iowa, 
277,  46  X.  W.  nil. 


1020  MORTGAGE    FORECLOSURES.  [§    692 

And  where  a  widow  gives  a  mortgage  of  the  fee  upon  a  lot  in 
which  she  held  a  life  estate  only  under  her  husband's  will,  al- 
though for  thirty  years  she  held  it  under  the  mistaken  impres- 
sion that  she  owned  the  fee,  a  sale  conveys  no  title  to  the  pur- 
chaser at  a  foreclosure  sale  made  shortly  after  her  death.** 

But  in  those  states  in  which  the  civil  law  doctrine  of  com- 
munity property  prevails,*^  where  a  widow  gives  a  deed  of 
trust  upon  lands  purchased  by  the  husband  during  their  mar- 
riage v/ith  his  separate  means,  to  secure  moneys  advanced  to 
her,  containing  nothing  to  show  that  they  were  not  commun- 
ity property,  and  without  notice  that  the  lands  were  the  sep- 
arate estate  of  the  husband,  upon  sale  under  the  trust  deed 
the  purchaser  acquires  a  superior  title  to  half  the  land  as 
against  the  heirs  of  the  husband.*^ 

§  692.  Same — Irregularities  and  defects. — Irregulari- 
ties and  defects  in  the  execution  of  the  mortgage  or  trust 
deed,  in  the  obtaining  of  a  decree  and  order  of  sale,  and  in 
selling  the  property  thereunder,  may  or  may  not  prevent  the 
purchaser  at  such  sale  from  taking  title.  All  depends  upon 
the  character  and  seriousness  of  the  irregularities  and  defects. 
It  is  thought  that  a  purchaser  at  a  foreclosure  sale  takes  title 
notwithstanding  defects  in  proceedings  upon  which  the  judg- 
ment was  obtained,  so  long  as  the  judgment  is  not  in  itself 
void.*'  But  land  included  in  the  judgment  which  was  not  set 
forth  in  the  complaint,  will  not  pass  to  the  purchaser  on  the 

44  Mixter  v.  Woodcock,  154  Mass.      Hamilton,  195  Pa.  St.  559,  46  Atl. 
535,  28  N.  E.  907.  109;    Kiernan    v.    Jersey    City,   80 

45  See  ante,  §§  628,  687.  N.  J.  L.   (51  Vroom)   273,  78  Atl. 
^^Kirby  v.  Moody,  84  Tex.  201,      228;  McDonald  v.  Hoffman,  153  N. 

19  S.  W.  453.  C.    254,    69    S.    E.    49 ;    Lander   v. 

^''Bailey     v.     Fanning      Orphan  Meserole,    133    N.    Y.    Supp.    340; 

School,  12  Ky.  L.  Rep.  644,   14  S.  Karcher  v.  Cans,  13  S.  D.  383,  79 

W.  908 ;  Sproule,  as  trustee,   etc  v.  Am.  St.  Rep.  893,  83   N.  W.  431 ; 

Davics,   171   N.   Y.   277,   63   N.   E.  Gooding   v.    Ransom,   63    Neb.    78, 

1106;   Goerz  v.  Barstow,   148  Fed.  88  N.  W.  169. 
562,  78  C.  C.  A.  248.    See  Elder  v. 


§  693]  DELIVERING  DEED.  1021 

foreclosure  sale.*®  Failure  to  determine  all  the  issues  involved 
in  the  foreclosure  action  will  not  invalidate  the  sale  thereun- 
der.'^ 

It  has  been  said  that  although  a  sale  of  mortgaged  prem- 
ises under  a  power  of  sale  contained  therein,  in  the  absence 
of  the  mortgagee,  is  irregular,  the  legal  title  passes  to  the  pur- 
chaser by  the  deed  given  to  him.^°  And  in  those  cases  where 
the  mortgage  is  invalid  because  of  the  failure  of  the  mort- 
gagee, a  foreign  corporation,  to  comply  with  the  State  laws 
in  respect  to  having  a  place  of  business  in  the  State,  with  an 
authorized  agent,  this  will  not  invalidate  the  title  under  a  sale 
made  under  the  power  contained  in  the  mortgage,  for  the 
reason  that  the  contract  evidenced  by  the  mortgage  is  fully 
executed. ^^ 

The  supreme  court  of  Minnesota,  in  the  case  of  Russell  v. 
H.  C.  Akeley  Lumber  Company,^^  say  that  a  purchaser  at  a 
defective  foreclosure  sale,  or  his  assigns,  who  goes  into  pos- 
session of  the  premises  with  the  assent  of  the  mortgagor,  or  his 
successors,  will  be  deemed  a  mortgagee  in  possession,  and  if 
he  remains  in  possesion  until  the  right  of  redemption  is 
barred,  he  becomes  vested  with  the  title. 

§  693.  Same — Junior  liens. — In  those  cases  where  the 
proceedings  are  regular,  and  junior  lienors  are  duly  made 
parties  to  the  action,  the  purchaser  takes  the  realty  freed 
from  the  lien  of  the  junior  incumbrancers,^^  subject  to  the 

«  See  Clapp  v.  McCabe,  155   N.  Ind.  180,  17  N.  E.  155 ;  Huzsey  v. 

Y.  525,  50  N.  E.  274.  Heffernan,  143  Mass.  232,  9  N.  E. 

^^  Brown    v.    Johnson,     58     Neb.  570;  Heinss  v.  Henry,  127  La.  770, 

222,  78  N.  W.  515.  54  So.  24.    See  Hitchler  v.  Citisens' 

^^  Lanier  v.  Mcintosh,    117    Mo.  Bank,    63    Miss.    403;    Stewart    v. 

508,  38  Am.  St.  Rep.  676,  23  S.  W.  Wheeling  &  L.  E.  R.  Co.  53  Ohio 

787.  St.  151,  41  N.  E.  247,  34  Ohio  L.  J. 

^"^  Gamble   v.    Caldwell,    98    Ala.  56,    2    Ohio    Leg.     News,    659,    29 

577,  12  So.  424.  L.R.A.     438;     Englchart-Hitchcock 

62  45  Minn.  376,  48  N.  W.  3.  Co.  v.   Central  Investment  Co.   136 

^  Diiesterberg    v.    Swartzel,    115  Ga.  564,  71    S.    E.    787.     See    also 


1022 


MORTGAGE    FORECLOSURES. 


[§  693 


right  to  redeem,^*  and  in  some  states  even  that  privilege  is  de- 
nied.^^  And  after  a  valid  sale  under  a  senior  mortgage  a 
junior  mortgagee  cannot,  by  a  suit  to  foreclose  on  the  same 
property,  compel  one  who  claims  to  hold  the  title  passed  by 
such  sale  to  appear  and  make  proof  thereof.*^ 

But  in  all  jurisdictions  v^here  a  senior  mortgagee  forecloses 
his  mortgage  and  sells  the  property  without  making  the  junior 
mortgagee  a  party,  or  giving  him  notice,  the  purchaser  at 
such  judicial  sale,  whether  it  be  the  senior  mortgagee  or  a 
stranger,  acquires  his  title  subject  to  the  right  of  redemption 
by  the  junior  mortgagee."  And  the  same  rule  obtains  where 
the  junior  mortgagee  has  assigned  all  his  interest  in  the  mort- 
gage and  the  notes  secured  thereby  to  a  third  person,  who  is 
not  a  party,  and  is  without  notice  of  such  proceedings  and 
sale;  *'  and  such  owner  of  the  notes  and  junior  mortgage  may 
maintain  an  action  against  such  purchaser  to  foreclose  his 
mortgage,^^  because  the  record  of  the  junior  unsatisfied  mort- 


Thompson  v.  Hemenway,  218  111. 
46,  109  Am.  St.  Rep.  239.  75  N.  E. 
791. 

A  purchaser  on  foreclosure  takes 
the  property  discharged  from  all 
liens  and  interests  acquired  pending 
tne  suit  by  persons  charged  with 
constructive  notice  thereof,  al- 
though they  were  not  made  parties 
to  the  suit ;  and  the  latter  must  seek 
satisfaction  from  the  proceeds  of 
the  sale.  This  was  the  case  of 
a  sale  of  a  railway.  Stewart  v. 
Wheeling  &  L.  E.  R.  Co.  53  Ohio 
St.  151,  34  Ohio  L.  J.  56,  2  Ohio 
Leg.  News,  659,  41  N.  E.  247,  29 
L.R.A.  438. 

^^  Diiesterberg  v.  Sivartzel,  115 
Ind.  180,  17  N.  E.  155. 

55  The  supreme  judicial  court  of 
Massachusetts,  in  the  case  of  Hiiz- 
zcy  V.  Hcffcrnan,  143  Mass.  232.  9 
N.  E.  570;  say  that  a  sale  under 
foreclosure    of    a    prior    mortgage 


terminates  the  interest  of  the 
junior  mortgagee  in  the  premises, 
and  vests  in  the  purchaser  an  estate 
in  fee  free  from  the  junior  mort- 
gage, or  from  any  right  of  redemp- 
tion in  the  mortgagor  or  his  subse- 
quent grantees. 

56  H itchier  v.  Citizens'  Bank,  63 
Miss.  403. 

^"^  Holliger  v.  Bates,  43  Ohio  St. 
437,  2  N.  E.  841.  See  Levin  v. 
Gates,  as  trustee,  etc.  71  Misc.  234, 
128  N.  Y.  Supp.  746.  See  also 
Capchart  v.  McGahey,  132  Ala.  334, 
31  So.  503. 

^^Holliger  v.  Bates,  43  Ohio  St. 
437,  2  N.  E.  841. 

^^  HolUger  v.  Bates,  43  Ohio  St. 
437.  2  N.  E.  841. 

The  fact  that  the  purchaser  of 
the  notes  and  mortgage  did  not 
take  a  written  assignment  of  the 
junior  mortgage  and  record  it,  or 
obtain    from  the   mortgagor   a  quit 


§  694]  DELIVERING  DEED.  1023 

gage  to  secure  notes  unpaid  at  the  time  of  such  sale  put  the 
purchaser  upon  inquiry.^" 

§  694.  Same — Licenses  and  trusts. — It  is  held  that  the 
purchaser  at  a  mortgage  sale  of  lands  subject  to  a  secret  re- 
sulting trust  takes  the  land  freed  from  the  trust,  where  the 
mortgagee  had  no  notice  of  the  trust  at  the  time  of  taking 
the  mortgage,  although  such  purchaser  had  notice  at  the  sale, 
and  was  a  surety  on  the  bond  secured  by  the  mortgage,  and 
was  familiar  with  the  whole  transaction.^^  And  a  person 
who  takes  possession  of  premises  under  a  mere  license  from 
the  mortgagee  cannot  set  up  his  possession  against  the  claim 
of  a  purchaser  at  a  regular  foreclosure  sale  under  the  mort- 
gage to  immediate  possession,  sustained  by  the  referee's  deed, 
although  such  licensee  has  had  no  notice  of  the  foreclosure 
proceedings.^^ 

The  supreme  judicial  court  of  Massachusetts,  in  the  case 
of  Cook  V.  Young,^^  say  that  an  arrangement  between  per- 
sons interested  in  real  estate  subject  to  a  mortgage,  that  at 
foreclosure  one  should  take  title,  and.  after  making  sale,  divide 
the  surplus,  implies  that  such  one  should  have  power,  in  his 
discretion,  to  make  a  sale,  convey  good  title  to  the  pur- 
chaser, and  collect  the  purchase  money,  and  does  not  create  a 
resulting  trust  following  the  land.  And  it  is  also  said  the 
fact  that  the  first  mortgagee  is.  by  the  terms  of  the  mortgage, 
to  receive  all  profits  and  gains  from  the  mortgaged  property, 
and  after  paying  wiiat  is  due  to  himself,  to  pay  over  any  sur- 
plus to  the  other  creditors,  does  not  make  him  a  trustee  for 
them,  where  no  surplus  ever  comes  into  his  hands,  so  as  to 

claim  deed  of  his  equity  of  redemp-  61  Logan  v.  Eva,  144  Pa.  St.  312, 

tion   and   record   it,   does    not    de-  22   Atl.   757,  28  W.   N.   C.   464,   48 

feat  his  junior  mortgage,  or  estop  Phila.  Leg.  Int.  454. 

him  from   foreclosing  it.     Holliger  ^^  Wing  v.  De  la  Rionda.  131  N. 

V.  Bates,  43  Ohio  St.  437,  2  N.  E.  Y.  422,  30  N.  E.  243,  43  N.  Y.  S.  R. 

841.  305. 

^0  Holliger  v.   Bates.  43  Ohio  St.  63  n  n.  E.  752. 
437,  2  N.  E.  841. 


1024  MORTGAGE    FORECLOSURES.  [§    695 

affect  his  purchase  of  the  property  on  a  foreclosure  for  liis 
debt.^* 

§  695.  Same — "More  or  less." — In  the  conveyance  and 
mortgaging  of  real  estate  it  is  the  usual  practice  to  describe 
the  property  by  metes  and  bounds,  or  governmental  sub- 
divisions, and  fractions  thereof,  specifying  the  number  of 
acres,  and  adding  the  qualification,  "more  or  less."  ^^  But  it 
is  said  that  the  omissior)  of  the  words  "more  or  less"  after  the 
number  of  acres  is  given  in  a  mortgage,  from  the  execution 
founded  on  a  judgment  of  foreclosure,  and  from  the  entry 
of  a  levy,  will  not  vitiate  the  sale  as  a  sale  of  the  entire  tract 
embraced  in  the  mortgage,  or  limit  the  quantity  sold  to  the 
exact  number  of  acres  stated.^®  And  the  supreme  court  of 
South  Carolina,  in  ex  parte  Boyce,^'  say  that  the  purchaser  of 
property  at  a  mortgage  foreclosure  is  entitled  to  a  tract  of 
three  and  one  quarter  acres  on  which  the  residence  is  situated, 
as  well  as  to  a  tract  of  sixty-five  and  one-half  acres,  where  it 
is  described  in  the  mortgage,  and  also  in  the  complaint  in  the 
foreclosure  proceedings  as  "being  a  place  whereon"  the  mort- 
gagor resides  and  containing  sixty-five  and  one-half  acres, 
more  or  less,  and  the  mortgagor  for  many  years  has  treated 
the  two  parcels  as  one  tract. 

§  696.  Same — Mortgaged  succession. — The  supreme 
court  of  Louisiana,  in  the  case  of  Forstall's  Succession,^^  say 
that  where  mortgaged  succession  property  is  sold  by  executory 
process,  the  purchaser  cannot  be  compelled  to  pay  to  the  suc- 
cession representative  the  amount  of  ranking  special  mort- 
gages which  he  is  entitled  to  retain  after  satisfying  the  junior 

^^New     Orleans    Nat.     Banking  ^^  Breach  v.   O'Neal,  94  Ga.  474, 

Asso.  V.  Le  Breton,  120  U.  S.  765 ;  20  S.  E.  133.     See  Skaggs  v.  Kelly, 

30  L.  ed.  821,  7  Sup.  Ct.  Rep.  772.  42  S.  W.  275.     (Tenn.) 

65  See  3  Kerr  on  Real   Prop.   §§  67  19  5.  E.  495. 

2335,  2336.  68  39  La.  An.  1052,  3  So.  277. 


§  697]  DELIVERING  DEED,  1025 

mortgage  of  the  seizing  creditor,  but'  it  is  otherwise  if  the 
unsatisfied  mortgages  are  general. ^^ 

§  697.  Same — Obligations  of  purchasers. — In  those 
cases  where  the  grantee  of  a  mortgagor  takes  subject  to  two 
mortgages,  and  purchases  the  property  at  a  foreclosure  sale 
under  the  first  mortgage,  this  will  not  extinguish  the  lien  of 
the  second  mortgagee,  because,  having  taken  his  conveyance 
from  the  mortgagor  subject  to  the  lien  of  the  second  mortgage, 
he  is  bound  thereby.''^''  And  a  bondholder  purchasing  at  a 
mortgage  foreclosure  sale  and  paying  bonds  for  the  mort- 
gaged property  may  be  compelled,  by  personal  judgment,  to 
pay  the  amount  due  upon  other  bonds  subsequently  decreed  to 
be  of  equal  standing  with  the  bonds  of  such  purchaser.'^ 

The  supreme  court  of  the  United  States,  in  Olcott  v.  Head- 
rick,'^  say  that  a  purchaser  of  property  at  a  foreclosure  sale 
under  a  decree  which  makes  him  liable  for  claims  against  the 
receiver  which  shall  be  presented  within  six  months  after  the 
confirmation  of  the  sale,  is  liable  for  such  a  claim  presented 
after  said  six  months,  where  the  decree  of  confirmation  of  the 
sale  makes  such  purchaser  liable  for  all  claims  against  the  re- 
ceiver without  any  limitation  as  to  the  time  of  their  presenta- 
tion. And  the  same  court  say  in  the  early  case  of  Lovell  v. 
Cragin,'^  that  the  obligation  of  purchasers  on  foreclosure  to  pay 
their  pro  rata  share  of  the  debt  to  holders  of  notes  who  are  not 
parties,  follows  the  land  in  the  hands  of  third  persons  not 
parties  to  the  judgment,  and  is  in  the  nature  of  a  judicial  mort- 
gage; but  to  be  effective  in  Louisiana,  as  to  such  third  per- 
sons, the  judgment  must  be  inscribed  with  the  recorder  of 
mortgages,  and  does  not  give  a  lien  until  it  has  been  registered 
as  required  by  the  statutes. 

^^Forstall's    Succession,    39    La.  72  141  u.  S.  543,  35  L.  ed.  851,  12 

An.  1052,  3  So.  277.  Sup.  Ct.  Rep.  81. 

70  See  Kennedy  v.  Borie,  166  Pa.  73  135  U.  S.  130.  34  L.  ed.  Z72,  10 
St.  360,  31  Atl.  98,  36  W.  N.  C.  72,.  Sup.  Ct.  Rep.  1024. 

71  Moran  v.  Hagerman,  12  C.  C. 
A.  239,  64  Fed.  499. 

Mortg.  Vol.  II.— 65. 


1026  MORTGAGE    FORECLOSURES.  [§    698 

§  698.  Same — Parol  trusts. — It  is  thought  that  wliere 
mortgaged  lands  are  held  under  a  parol  trust,  of  which  the 
mortgagee  has  no  knowledge,  and  forecloses  his  mortgage 
without  joining  the  beneficiaries,  this  will  not  avoid  the  sale, 
even  though  the  purchaser  had  knowledge  of  the  terms.'* 

§  699.  Same — Possession  and  ejectment. — We  have  al- 
ready seen  that  the  purchaser  at  a  foreclosure  sale, — be  he  the 
mortgagee,  lien  holder,  or  a  stranger, — acquires  all  the  rights 
and  estate  of  the  mortgagor.'*  Among  other  things  he  is 
entitled  to  recover  in  ejectment  as  against  the  mortgagor,'^ 
and  also  against  persons,  not  made  parties,  for  the  purpose 
of  determining  the  rights  of  the  latter."  It  is  thought  that  a 
notice  to  quit,  or  demand  for  possession,  need  not  be  given 
by  a  purchaser  at  foreclosure  sale  in  those  cases  where  the 
occupant  denies  the  tenancy  and  asserts  ownership  in  him- 
self.'' 

§  700.  Same — Prior  liens — Rights  and  liabilities. — It  is 

axiomatical,  though  formally  adjudicated  and  determined,  that 
a  mortgage  foreclosure  does  not  cut  ofif  the  rights  of  persons 
and  parties  under  a  prior  mortgage,  where  those  rights  are 
reserved  by  the  decree.'^    It  is  equally  true  that  a  purchaser  at 

"^^  Cooper    V.    Loughlin,  .75    Tex.  show   the  judgment  and   execution 

524,  13  S.  W.  27.  with     proceedings     thereon.       See 

75  See  ante,  §  683.  Young  v.  Algco,  3  Watts  (Pa.)  223, 

76Gi7/   V.    Weston,    110    Pa.     St.  227. 

305,   1  Atl.  917.  "^"^  Dodge  v.  Omaha  &  S.   W.  R. 

The   supreme  court   of    Pennsyl-  Co.  20  Neb.  276,  29  N.  W.  936. 

vania,  in  the  case  of  Gill  v.  Weston,  '^  Sims   v.    Cooper,    106    Ind.    87, 

supra,   say   it   is    unnecessary    that  5  N.  E.  726. 

such    purchaser,    in    an    action    of  "^^  Humphreys  v.   MeKissock,    140 

ejectment   brought  by   him   against  U.   S.   304,   35  L.  ed.  473,    11    Sup. 

the  defendant  in  the  execution  on  Ct.    Rep.   779 ;   46  Am.    &   Eng.    R. 

which    the    land   was    sold,    or   any  Cas.  261,  10  Ry.  &  Corp.  L.  J.  303. 

one   coming   into   possession    under  A   purchaser  of  a    railroad    sold 

him,  should  show  previous  title  to  under  a  decree  of  foreclosure,  dis- 

the    land    in    the    defendant    in    the  charged    of    all    liens     and     claims 

execution.   It  is  sufficient  for  him  to  against  the  former  owner  or  its  re- 


§  700]  DELIVERING  DEED.  1027 

a  sale  under  a  prior  mortgage  to  the  foreclosure  of  which  the 
subsequent  mortgagees  were  not  made  parties,  cannot  maintain 
an  action  to  compel  them  to  pay  the  amount  of  the  prior  mort- 
gage and  of  the  improvements  placed  by  him  on  the  prem- 
ises.'" And  when  a  purchaser  takes  land  expressly  subject  to 
two  mortgages  he  cannot,  by  defaulting  in  the  payment  of  in- 
terest upon  the  prior  mortgage,  bring  about  a  sheriff's  sale 
and  buy  in  the  land  so  as  to  hold  it  discharged  from  the  lien 
of  the  second  mortgage;  especially  is  this  true  where  he  enters 
into  a  combination  for  such  result,  and  conceals  the  pendency 
of  the  foreclosure  of  the  prior  mortgage."  A  sale  under  the 
foreclosure  of  a  junior  mortgage  is  subject  to  the  senior  lien 
and  the  purchaser  at  such  sale  buys  only  the  equity  of  redemp- 
tion.'^ On  the  same  principle,  it  is  held  that  a  purchaser  at 
a  foreclosure  sale  does  not  acquire  a  title  paramount  to  a 
mortgage  upon  a  portion  of  the  premises  as  to  which  the 
lien  of  the  mortgage  foreclosed  has  been  released,  by  taking 
in  his  own  name  a  tax  title  under  delinquent  taxes  paid  with 
moneys  paid  to  him  by  the  referee  out  of  the  proceeds  of  the 
sale,  under  a  provision  of  the  decree  that  the  back  taxes  be 
paid  first,  nor  by  the  payment  of  taxes  subsequently  assessed 
against  the  property,  since  the  back  taxes  are  in  effect  paid  by 
the  court  out  of  the  moneys  of  those  who  should  have  paid 
them  in  the  first  instance,  and  the  subsequent  taxes  are  proper- 
ly payable  by  such  purchaser.'' 

The  title  of  the  purchaser  at  a  foreclosure  sale  relates  back 
to  the  time  of  the  execution  of  the  mortgage.'*  Hence, 
it  has  been  held  that  the  purchaser  at  foreclosure  sale  of  a 
building  one  wall  of  which  the  mortgagor,  after  the  execu- 
tion of  the  mortgage,  had  agreed  in  writing  that  the  adjoin- 

ceivers,  cannot  be  compelled  to  pay  ®^  Kennedy  v.  Borie.   166  Pa.   St. 

a  judgment  against  the  receivers  in  360,  31  Atl.  98,  36  W.  N.  C.  7i. 

favor  of  an  injured  employee.    Chi-  ^^  Garza  V.  Howell,  37  Tex.  Civ. 

cago  &  O.  R.  R.  Co.  v.  McCamnion,  App.  585,  85  S.  W.  461. 

61   Fed.  772.  83  Morss  v.  Burns,  17  N.  Y.  Supp. 

80  Robbins  v.  Beers,  49  N.  Y.  S.  739,  44  N.  Y.  S.  R.  479. 

R.  360,  21  N.  Y.  Supp.  221.  84  See  post,  §  712. 


1028  MORTGAGE    FORECLOSURES,  [§    701 

ing  owner  could  use  as  a  party-wall  and  place  his  joists  there- 
in, acquires  such  party  wall  and  the  ends  of  the  joists  placed 
therein,  where  the  adjoining  owner  is  duly  made  a  party  to  the 
foreclosure  action  and  barred  of  all  right  to  the  mortgaged 
property.®^  The  Delaware  chancery  court,  in  the  case  of 
Foxwell  V.  Slaughter,^®  say  that  the  purchaser  of  lands  at  a 
judicial  sale  on  scire  facias  upon  a  mortgage  cannot  restrain 
the  prosecution  to  judgment,  by  an  assignee  of  a  purchase 
money  mortgage  upon  the  same  land,  duly  recorded  and  open 
to  his  inspection  and  executed  at  the  same  time  as  the  mort- 
gage on  which  the  sale  was  had,  although  recorded  later,  on 
the  grounds  that  it  was  agreed  between  the  parties  to  both 
mortgages  at  the  time  of  their  execution,  but  not  expressed 
therein,  that  the  lien  of  the  purchase-money  mortgage  was  to 
be  postponed  to  that  of  the  other  mortgage,  and  that  the  de- 
clarations of  third  parties  and  the  general  understanding  were 
to  the  effect  that  the  sale  at  which  he  purchased  would  pass  a 
fee  title. 

It  is  a  general  rule  that  a  mortgagor  cannot  claim  any 
benefit  from  a  purchase  of  outstanding  titles  or  claims  to  the 
property  by  the  purchaser  at  the  sale  under  the  mortgage.^'' 
And  the  supreme  court  of  Iowa,  in  the  case  of  Austin  v. 
Bowman,*^  say  that  it  is  not  evidence  of  bad  faith  on  the  part 
of  one  holding  a  certificate  to  lands  sold  on  foreclosure  of  a 
superior  lien,  that  afterwards,  observing  defects  in  a  title, 
he  took  security  to  protect  himself  against  other  incum- 
brances ;  nor  will  equity  require  him  to  abandon  his  valid  title 
to  the  land  and  seek  to  recover  on  his  security. 

§  701.  Same — Purchaser  at  irregular  or  invalid  sale. — 

Invalid  sales  of  mortgaged  property  convey  no  title  as  against 
parties  having  an  interest  or  an  equity  in  the  mortgaged  prem- 
ises; an  irregularity  in  such  sale  may  be  such  as  to  prevent 

85  Leavenworth  Lodge,  No.  2,  I.  ^7  Ritchie  v.  Jtidd,  137  111.  453,  27 
O.  O.  F.  V.  Byers,  54  Kan.  323,  38      N.  E.  682. 

Pac.  261.  88  81  Iowa,  277,  46  N.  W.  1111. 

86  5  Del.  Ch.  396 


§  701]  DELIVERING  DEED.  1029 

the  title  from  passing  thereunder.  Thus  it  has  been  said 
that  a  purchaser  of  property  at  a  sale  under  a  deed  of  trust, 
with  knowledge  of  an  order  enjoining  the  sale,  acquires  only 
such  right,  as  against  the  plaintiff  in  the  action  wherein  the 
injunction  issued,  as  the  equity  of  the  trust  creditor  may,  on 
hearing  the  cause,  be  held  to  confer.^^  And  the  mortgagee 
purchasing  at  an  irregular  foreclosure  sale  and  conveying  the 
land  to  a  bona  fide  purchaser,  may  be  compelled  to  account 
to  the  holder  of  an  unrecorded  deed  who  was  not  made  a 
party.^°  Where  there  is  nothing  due  upon  the  mortgage 
when  it  is  foreclosed  no  legal  title  is  obtained  by  the  pur- 
chaser.^^ 

The  supreme  court  of  Minnesota,  in  the  case  of  Jellison  v. 
Halloran,^^  say  that  a  grantee  of  a  purchaser  at  a  void  fore- 
closure sale,  who  goes  into  and  holds  possession  in  good  faith 
and  under  circumstances  from  which  assent  of  the  mortgagor 
may  be  implied,  is  the  equitable  assignee  of  the  mortgage, 
and  occupies  the  position  of  a  mortgagee  in  possession.^^  And 
a  purchaser  of  land  at  a  sale  under  a  trust  deed  made  without 
the  owner's  knowledge  and  without  any  purpose  to  pay  off 
the  debt  secured,  but  merely  to  give  title  to  the  purchaser  in 
order  that  he  may  hold  it  as  security  for  a  debt  from  the 
owner's  husband,  can  hold  it,  if  at  all,  as  a  lien  for  no  more 
than  the  amount  bid  in  his  name  at  the  trustee's  sale.^*  The 
mortgagor  cannot  avoid  the  effects  of  a  void  foreclosure, 
without  offering  to  pay  what  is  equitably  due  under  the  de- 
cree with  interest.^* 

89  Osborn  v.  Glascock,  39  W.  Va.  should  not  be  permitted  to  recover 

749,  20  S.  E.  702.  one  of  the  lots  from  a  purchaser  at 

9°  Slattery     v.     Schwannecke,    44  a  void   sale    under    the    mortgage, 

Hun  (N.  Y.)  75.  without  fully  reimbursing  the  pur- 

^'^  Bow  en    v.    Brogan,    119    Mich.  chaser  for  money  used  in  discharg- 

218,  75  Am.  St.  Rep.  387,  77  N.  W.  ing  the  debt.     Whitney  v.  Krapf,  8 

942.  Tex.  Civ.  App.  304,  27  S.  W.  843. 

92  44  Minn.  199,  46  N.  W.  332.  94  Rogers  v.  Rogers,  141  111.  226, 

93  It  is  thought  that  the  heirs  of  a  30  N.  E.  542,  aff'g  40  111.  App.  480. 
mortgagor  of  two  lots,  each  of  95  StuU  v.  Masilonka,  74  Neb. 
which  is  liable  for  the  entire  debt,  309,  104  N.  W.  188,  108  N.  W.  166. 


1030 


MORTGAGE    FORECLOSURES. 


[§   702 


§  702.  Same — Rents — Title  to. — The  rents,  issues  and 
profits  of  mortgaged  property  pass  to  the  purchaser  thereof 
at  a  foreclosure  sale.  But  a  purchaser  on  foreclosure  sale 
is  not  entitled  to  recover  from  the  mortgagor  for  rent  there- 
after collected  by  him,  where  he  did  not  assume  to  act  as 
the  purchaser's  agent  in  the  transaction.  The  remedy  of  the 
purchaser  in  such  case  is  against  the  tenant.®^  Hence  in  those 
cases  where  a  lessee  who  anticipates  the  payment  of  rent, 
with  notice  of  an  existing  mortgage  upon  the  premises,  does 
so  at  his  own  peril,  and  can  be  compelled  to  pay  a  second  time 
by  the  purchaser  at  a  foreclosure  sale  under  the  mortgage, 
for  the  period  elapsing  after  the  foreclosure.^' 

§  703.  Same  —  Riparian     mortgages.  —  The     supreme 

court  of  New  York,  in  the  case  of  the  Mutual  Life  Insurance 


^^  Hatch  V.  Sykes,  64  Miss.  307, 
1  So.  248. 

^""Hartley  v.  Meyer,  2  Misc.  56, 
20  N.  Y.  Supp.  855,  49  N.  Y.  S.  R. 
351. 

The  Indiana  supreme  court,  in  the 
case  of  Brysoii  v.  McCrai-y,  102  Ind. 
1,  1  N.  E.  55,  say  that  under  the  act 
of  1879,  the  tenant  of  the  judgment 
•debtor  in  possession  was  treated  as 
the  tenant  of  the  purchaser,  and 
was  accountable  to  him  for  the 
reasonable  rents,  in  the  first  in- 
stance, whether  the  judgment  debt- 
or was  solvent  or  insolvent.  If 
the  premises  were  not  redeemed, 
the  rents  so  collected  belonged  to 
the  purchaser.  If  the  premises 
were  redeemed,  the  rents  so  col- 
lected were  allowed  as  a  payment 
in  favor  of  the  judgment  debtor  on 
the  judgment.  Under  Act  1861,  if 
a  person  in  good  faith  bought  the 
rents  from  the  judgment  debtor, 
he  could  hold  them  as  against  the 
execution  purchaser,  and  was  not 
liable  to  him  therefor.    Under   Act 


1879,  if  a  person  bought  the  rents 
from  the  judgment  debtor,  he  paid 
for  them  at  his  peril,  because  the 
occupant  of  the  premises  was  liable 
to  the  execution  purchaser  for  the 
reasonable  rents.  But  these 
changes  did  not  so  materially  affect 
the  rights  of  the  mortgagor  under 
a  contract  made  before  Act  1879 
took  effect  as  to  bring  that  Act 
within  the  constitutional  limitation 
as  to  existing  contracts.  The  case 
of  Gale  V.  Parks,  58  Ind.  117,  so 
far  as  it  holds  that  the  execution 
purchaser  might  recover  rents  of 
the  judgment  debtor  independently 
of  the  statute,  must  be  regarded  as 
overruled.  Bryson  v.  McCrary,  102 
Ind.  1,  1  N.  E.  55. 

In  railroad  mortgages  and  fore- 
closures a  receiver  of  a  road  does 
not,  by  his  receipt  of  rent  from  a 
lessee  of  the  right  to  use  a  portion 
of  the  road  under  a  contract  made 
pending  the  suit,  and  by  his  recog- 
nition of  the  contract,  create  a 
general  tenancy  so  as  to  affect  the 


§  703] 


DELIVERING    DEED. 


1031 


Company  v.  Voorhis,^®  say  that  a  mortgagee  of  upland  does 
not,  upon  foreclosure  of  his  mortgage,  obtain  a  title  to  lands 
under  water  in  front  of  the  upland,  granted  to  the  mortgagor 
by  the  state  after  the  execution  of  the  mortgage,  and  not  in- 
cluded in  the  description  in  the  mortgage.^® 


rights  of  the  purchasers  on  fore- 
closure. Fai-mers'  Loan  &  T.  Co. 
V.  Chicago  &  A.  R.  Co.  44  Fed.  653. 

98  71  Hun  (N.  Y.)  117,  24  N.  Y. 
Supp.  529,  53  N.  Y.  S.  R.  874. 

99  This  holding  seems  to  be  some- 
what in  conflict  with  the  New 
Jersey  doctrine  as  heretofore  given 
(See  ante,  §  291),  and  for  that 
reason  the  facts  in  the  case  are  here 
set  out  fully  and  the  reasoning  of 
the  court  given  in  extenso.  The 
facts  in  the  case  are  as  follows : 
"Peter  Voorhis  owned  a  lot  of  land 
in  Nyack,  Rockland  county,  bound- 
ed on  the  east  by  the  Hudson  river. 
On  the  25th  of  April,  1872,  he  exe- 
cuted a  mortgage,  in  which  his  wife 
joined,  to  the  plaintiff,  to  secure  a 
loan  of  $40,000.  This  mortgage 
was  foreclosed,  and  on  the  23rd  of 
July?  1873,  was  sold  under  a  decree 
in  the  foreclosure  action.  The 
plaintiff  bought  in  the  property  for 
$10,000,  and  duly  entered  a  judg- 
ment for  the  deiiciency,  which  was 
$32,853.40,  on  the  9th  of  December, 
1880.  On  the  30th  day  of  Novem- 
ber, 1872,  Peter  Voorhis  applied  to 
the  commissioners  of  the  land  office 
for  a  grant  of  land  under  water  ad- 
jacent to  this  mortgaged  property, 
and  also  in  front  of  two  other 
pieces  he  owned,  adjoining  the 
same.  The  grant  was  made  upon 
the  petition  of  Voorhis  that  he  was 
the  owner  of  the  upland,  and  in  oc- 
cupation of  the  same,  and  that  the 
grant  was  needed  for  the  beneficial 


enjoyment  of  the  adjoining  uplands 
for  shipping  stone  quarried  on  the 
uplands,  and  that  the  petitioner  in- 
tended to  build  a  dock  for  public 
steamboat  uses  and  general  pur- 
poses. Upon  due  publication  of 
the  notice  of  application  the  people 
of  the  state  of  New  York  granted 
the  lands  under  water  "for  the  pur- 
pose of  promoting  the  commerce  of 
our  said  state,  or  for  the  beneficial 
enjoyment  of  the  adjacent  owner," 
on  the  23rd  of  July,  1873.  Peter 
Voorhis  died  in  the  next  year.  The 
defendants  were  the  heirs  at  law 
of  the  deceased.  The  court  in  the 
course  of  the  opinion  say:  "The 
question  is,  what  interest  the  facts 
gave  the  plaintiff  in  the  lands  under 
water  in  front  of  the  mortgaged 
upland.  A  grant  to  any  other 
person  than  the  upland  owner  is 
void.  (New  York  Session  Laws, 
1850,  c.  283.)  The  applicant,  Voor- 
his, was  the  owner  of  the  land  up 
to  the  sale  under  foreclosure.  Be- 
fore that  time  the  mortgage  was 
simply  a  security.  Plaintiff  had  no 
other  interest  in  the  land  than  to 
be  paid  out  of  it.  Waring  v.  Smyth, 
2  Barb.  Ch.  (N.  Y.)  119,  47  Am. 
Dec.  299;  Calkins  v.  Calkins,  3 
Barb.  Ch.  (N.  Y.)  305;  Gardner  v. 
Heartt,  3  Den.  (N.  Y.)  232;  Aster 
V.  Miller,  2  Paige.  Ch.  (N.  Y.)  608; 
Morris  v.  Mowatt,  2  Paige.  Ch.  (N. 
Y.)  586.  22  Am.  Dec.  661 ;  As  for  v. 
Hoyt,  5  Wend.  (N.  Y.)  603.  The 
description  in  the  mortgage  did  not 


1032 


MORTGAGE    FORECLOSURES. 


[§  704 


§  704.  Same — Subrogation  of  purchaser. — The  general 
rule  is  that  a  &o«a  fide  purchaser  at  a  mortgagee's  sale  which 
proves  defective  is,  after  paying  the  purchase  money,  subro- 
gated to  the  rights  of  the  mortgagee.^     The  mortgage  is  in 


include  the  lands  under  water. 
When  it  was  given,  Voorhis,  the 
mortgagor,  had  no  interest  in  it. 
The  land  belonged  to  the  state. 
People  V.  Canal  Appraisers,  2iZ  N. 
Y.  461 ;  Ledyard  v.  Ten  Eyck,  36 
Barb.  (N.  Y.)  102.  The  court  of 
appeals,  in  Gould  v.  Railroad  Com- 
pany (6  N.  Y.  522),  held  that  the 
owner  of  the  upland  had  no  other 
right  than  all  others  in  the  lands 
under  water,  and,  while  this  princi- 
ple is  questioned  in  Rumscy  v.  Rail- 
road Company  (133  N.  Y.  79,  IS 
L.R.A.  618,  28  Am.  St.  Rep.  600,  30 
N.  E.  654),  no  question  is  made  as 
to  the  title  being  in  the  people  as 
to  lands  between  high  water  mark 
and  under  water.  Blakslee  Manu- 
facturing Co.  V.  Blakslee  Sons  Iron 
Works,  129  N.  Y.  155,  29  N.  E.  2 ; 
Rumsey  v.  Railroad  Co.  114  N.  Y. 
423,  21  N.  E.  1066;  People  v.  New 
York  &  S.  I.  Ferry  Co.  68  N.  Y. 
71.  The  foreclosure  sale  did  not, 
therefore,  extend  a  title  in  lands 
not  covered  by  it.  The  mortgaged 
lands  were  not  extended  by  the 
mortgage  being  on  tide  water, 
as  the  lands  under  water  then 
belonged  to  the  sovereign.  The 
title  Voorhis  took  was  abso- 
lute and  unconditional.  Abbott  v. 
Curran,  98  N.  Y.  665.  The  paten- 
tee, being  the  owner  of  the  upland 
thereof,  got  a  good  title,  and,  if 
any  right  was  obtained  by  the  fore- 
closure sale,  it  was  a  right  to  sue 
for  damages  for  an  injury  to  the 
right  of  the  upland  to  go  to  the 
river.    This  right  was  destroyed  by 


the  upland  owner  himself,  and  the 
mortgagee  got  the  land  covered  by 
the  mortgage." 

See  also  Leonard    v.    Wood,    33 
Ind.  App.  83,  70  N.  E.  827. 

^  Bruschke  v.  Wright,  166  111. 
183,  57  Am.  St.  Rep.  125,  46  N.  E. 
813 ;  Equitable  Mortgage  Co.  v. 
Gray,  68  Kan.  100,  74  Pac.  614; 
Finlayson  v.  Peterson,  11  N.  D.  45, 
89  N.  W.  855 ;  Gnffin  v.  Griffin,  75 
S.  C.  249,  117  Am.  St.  Rep.  899,  55 
S.  E.  317.  See  Jordan  v.  Sayer,  29 
Fla.  100,  10  So.  823;  Brown  v. 
Brown,  7Z  Iowa  430,  35  N.  W.  507 
Lanier  v.  Mcintosh,  117  Mo.  508 
38  Am.  St.  Rep.  676,  23  S.  W.  787 
Townsend  v.  Thomson,  139  N.  Y, 
152,  34  N.  E.  891,  54  N.  Y.  S.  R 
665 ;  Brewer  v.  Nash,  16  R.  I.  458 
27  Am.  St.  Rep.  749,  17  Atl.  857 
Givins  v.  Carroll,  40  S.  C.  413,  42 
Am.  St.  Rep.  889,  18  S.  E.  1030 
McCamant  v.  Roberts,  87  Tex.  241 
27  S.  W.  86,  rev'g,  25  S.  W.  731 
Capell  V.  Dill,  82  Kan.  652,  109  Pac 
286;  Rodman  v.  Quick,  211  111.  546, 
71  N.  E.  1087 ;  Kelso  v.  Norton,  65 
Kan.  778,  93  Am.  St.  Rep.  308,  70 
Pac.  896;  Stouffer  v.  Harlan,  68 
Kan.  135,  64  L.R.A.  320,  104  Am. 
St.  Rep.  396,  74  Pac.  610 ;  Sloane  v. 
Lucas,  2>7  Wash.  348,  79  Pac.  949; 
Investment  Securities  Co.  v.  Adams, 
37  Wash.  211,  79  Pac.  625;  Bosch- 
ker  V.  Van  Beek,  19  N.  D.  104,  122 
N.  W.  338 ;  Stough  v.  Badger  Lum- 
ber Co.  70  Kan.  713,  79  Pac.  72,7. 
See  also  Sims  v.  Steadman,  62  S.  C. 
300,  40  S.  E.  677. 

A  purchaser  of  mortgaged  prem- 


§  704] 


DELIVERING    DEED. 


1033 


equity  regarded  as  assigned  to  such  purchaser,^  even  if  the 
mortgagee's  deed  to  him  does  not  contain  language  amounting 
to  a  legal  assignment.  And  this  is  so,  even  in  case  of  a  minor 
whose  guardian  inserted  in  the  mortgage  invalid  powers  of 


ises  who  pays  the  purchase  price 
at  a  foreclosure  sale  which  is  in- 
valid because  of  failure  to  describe 
the  land  in  the  advertisement  or 
the  deed,  is  entitled  in  equity  to 
the  security  of  the  mortgage  for  the 
amount  due  and  paid  on  the  debt. 
Lanier  v.  Mcintosh,  117  Mo.  508,  38 
Am.  St.  Rep.  676,  23  S.  W.  787. 

There  being  irregularities  a 
purchaser  at  a  sale  of  lands  subse- 
quently declared  void  therefor, 
made  under  a  power  in  a  mortgage, 
as  well  as  purchasers  thereof  at  a 
subsequent  partition  sale  among  the 
purchasers'  heirs,  is  subrogated  to 
the  rights  of  the .  mortgagee,  and 
such  purchase  operates  as  a  trans- 
fer of  the  mortgage  to  him.  Givins 
V.  Carroll,  40  S.  C.  413,  42  Am.  St. 
Rep.  889,  18  S.  E.  1030. 

The  owner  of  the  equity  of  re- 
demption not  being  a  party  to  a  sale 
under  a  decree  in  a  foreclosure  suit 
no  title  is  conveyed,  but  the  pur- 
chaser becomes  subrogated  to  the 
rights  of  the  mortgagee  in  the  prem- 
ises, as  well  as  in  the  mortgage 
debt.  Jordan  v.  Sayre,  29  Fla.  100, 
10  So.  823.    See  ante,  §  137. 

The  court  of  appeals  of  New 
York,  in  the  case  of  Tozcnsoid  v. 
Thomson,  139  N.  Y.  152,  34  N.  E. 
891,  54. N.  Y.  S.  R.  665,  say  that  a 
purchaser  at  a  mortgage  foreclosure 
sale  defective  and  void  as  against 
the  owner  of  the  equity  of  redemp- 
tion because  he  was  not  made  a 
party  to  the  action  becomes  an  as- 
signee of  the  mortgage,  and,  if  he 


lawfully  enters  into  possession  of 
the  land,  a  mortgagee  in  possession. 

Where  three  judgments  in  fore- 
closure were  attempted  to  be  sat- 
isfied by  one  sale,  which  was  held 
erroneous  because  one  of  them  was 
against  a  single  individual  and  the 
others  were  jointly  against  him  and 
another,  and  the  sale  was  set  aside, 
a  purchaser  who  has  paid  the  two 
joint  judgments  may  be  subrogated 
to  the  rights  of  the  mortgage 
creditors  under  those  judgments. 
Brown  v.  Brown,  73  Iowa,  430,  35 
N.  W.  507. 

In  Texas  a  probate  court  has  no 
jurisdiction,  without  the  mortgagor 
being  made  a  party  to  order  a  sale 
by  an  administrator  of  a  duplicate 
land  certificate  which  was  mort- 
gaged to  the  intestate  for  a  loan  of 
money  and  for  his  services  in  pro- 
curing and  locating  it  upon  the 
lands ;  and  such  sale  will  vest  in 
the  purchaser  no  title  to  the  cer- 
tificate or  land  nor  any  right  to 
the  mortgage,  and  will  not  subro- 
gate him  to  any  of  the  mortgagee's 
rights,  or  to  the  lien  upon  the 
land  or  the  certificate.  McCamant 
V.  Roberts,  87  Tex.  241,  27  S.  W.  86, 
rev'g  25  S.  W.  731. 

2  See  Titcomb  v.  Fonda,  Johns- 
town &  Gloversville  R.  R.  Co.  38 
Misc.  630,  78  N.  Y.  Supp.  226; 
Smithson  Land  Co.  v.  Brautigain, 
16  Wash.  174,  47  Pac.  434.  See 
also  Nash  v.  Northwest  Land  Co. 
15  N.  D.  566,  108  N.  W.  792. 


1034  MORTGAGE    FORECLOSURES.  [§    705 

sale.'  And  it  is  said  that  an  entry  of  satisfaction  on  the  record 
of  a  mortgage  by  the  mortgagee  after  an  invalid  sale  of  the 
premises  does  not  debar  the  purchaser,  who  has  paid  the  pur- 
chase price,  of  his  right  to  the  security  of  the  mortgage  for 
the  amount  due  and  paid  on  the  debt.* 

It  is  thought  that  as  between  heirs  of  a  mortgagor  and 
persons  claiming  under  a  purchaser  at  a  void  sale  under  a 
power  contained  in  the  mortgage,  such  persons  are  entitled 
to  be  credited  with  the  amount  paid  at  such  mortgage  sale, 
with  interest  added  thereto  annually,  from  which  is  to  be 
deducted  the  rent  due  from  them,  but  to  which  is  to  be  added 
the  amount  paid  for  improvements  and  taxes.* 

§  705,  Same — Taxes  on  land — Liability  of  purchaser 
for. — It  has  been  said  that  the  purchaser  of  real  estate  at  a 
sale  under  a  mortgage  or  trust  deed  is  liable  for  the  taxes  ac- 
cruing during  the  year  of  the  sale,®  but  which  have  not  been 
assessed  at  the  time,  especially  where  the  auctioneer  publicly 
announced  at  the  sale  that  the  purchaser  would  be  required 
to  pay  all  the  taxes  for  that  year.''^  The  supreme  court  of 
North  Carolina  say  that  a  purchaser  at  a  foreclosure  sale  ob- 
tains the  premises  free  and  clear  from  the  burden  of  taxes 
resting  upon  them  at  the  time  the  mortgage  was  executed, 
w^here  the  mortgagee  at  the  time  of  the  execution  had  no 
notice  of  such  taxes,  although  the  purchaser  had  notice  thereof 
before  his  purchase  under  the  statute,^  providing  that  arrears 
of  taxes  "shall  not  affect  purchasers  w^ithout  notice."  ^     But 

3  Brewer  v.  Nash,   16  R.   I.  458,  Equitable    Life    Assurance    Society 

27  Am.  St.  Rep.  749,  17  Atl.  857.  of  United  States  v.  Toplitc,  69  Misc. 

^Lanier    v.    Mcintosh,    117    Mo.  457,  128  N.  Y.  Supp.  153. 

508,    38    Am.    St.    Rep.    676,    23    S.  ^  Grosvenor  v.    Bethel,  93   Tenn. 

W.  787.  577,   26   S.    W.    1096.     See    Union 

^  Givins  v.  Carroll,  40  S.  C.  413,  Trust  Co.  v.  Electric  Park  Amuse- 

42  Am.  St.  Rep.  889,  18  S.  E.  1030.  ment  Co.  135  N.  W.  115  (Mich.) 

6  See  Fidelity  Insurance  Trust  &  ^  jvj    c    Laws,  1891,  c.  391. 

Safe  Deposit  Co.  v.  Roanoke  Iron  ^  Moore  v.  Sugg,   114  N.  C.  292, 

Co.  84  Fed.  744;  Carroll  v.  Haigh,  19  S.  E.  147. 
97     111.     App.     576.      Contra,     see 


§  706]  DELIVERING  DEED.  1035 

the  supreme  court  of  South  CaroHna,  in  the  case  of  Wilson 
V.  Cantrell,^°  say  that  a  purchaser  under  foreclosure  of  a 
mortgage,  having  a  lien  before  the  issuance  of  a  tax  execu- 
tion, takes  title  subject  to  that  of  the  purchaser  under  the  tax 
execution  by  virtue  of  the  South  Carolina  statute  declaring 
all  taxes,  assessments  and  penalties  a  first  lien  in  all  cases 
whatever  upon  the  property  taxed. ^^ 

The  supreme  court  of  Missouri,  in  the  case  of  Bensieck  v. 
Cook,^^  say  that  the  payment  of  taxes  and  of  part  of  the  debt 
secured  by  a  trust  deed  is  not  a  defense  or  counterclaim  in 
favor  of  the  owner  of  the  equity  of  redemption  against  the 
purchaser  of  the  property  at  the  trustee's  sale.^^ 

§  706.  Same — Timber — Right  to. — The  purchaser  at 
mortgage  sale  acquires  the  trees  growing  upon  the  property 
at  the  time  of  the  sale ;  and  the  title  relating  back  to  the  time 
of  the  execution  of  the  mortgage. ^^  it  therefore  follows  that 
a  purchaser  at  a  foreclosure  sale  takes  free  from  the  right 
conveyed  by  the  mortgagor,  subsequent  to  the  execution  of  the 
mortgage,  to  cut  timber  on  the  land,  although  the  grantee  of 
such  right  purchased  the,  mortgage  and  assigned  it,  with  a 
verbal  agreement  that  the  timber  should  be  discharged  from 
the  lien  of  the  mortgage,  where  such  purchaser  had  no  notice 
of  such  agreement. ^^  And  the  purchaser  of  land  at  a  sale 
under  a  power  in  a  mortgage  gets  a  good  title  to  the  timber 

"40  S.  C.  114,  18  S.  E.  517.  1885,  remaining  unpaid,  which  was 

^1  Wilson   V.    Cantrell,   40    S.    C.  opposed   on   the   ground   that   said 

114,  18  S.  E.  517.  taxes    were    illegally    assessed    and 

^2  110  Mo.   173,  32)  Am.   St.  Rep.  therefore   not    valid   liens,    and    on 

422,  19  S.  W.  642.  consideration  by  the  court  was  re- 

"^^  Bensieck  v.  Cook,  110  Mo.  173,  fused,  with  liberty  to  the  purchaser 

iZ  Am.  St.  Rep.  422,  19  S.  W.  642.  to  be  relieved  from  his  purchase. 

In   re  Byrnes    (N.   Y.    1886)    the  i*  See  ante,  §  700;  post,  §  712. 

purchaser   of   real    estate   on    fore-  ^*  Beaufort   County   Lumber   Co. 

closure   of   a   mortgage,    made    ap-  v.   Bail,    111    N.    C.    120,    15    S.    E. 

plication  to  be  allowed  on  his  pur-  941,  rehearing  denied  in  112  N.  C. 

chase  money  the  amount  of  taxes  350,  17  S.  E.  537. 
on  the  property  for  the  years  1877- 


1036  MORTGAGE    FORECLOSURES.  [§    707 

thereon  as  against  a  purchaser  of  the  timber  from  the  mort- 
gagor, although  he  has  had  notice  of  an  unrecorded  release 
by  the  mortgagee  as  to  the  timber  right  after  the  sale,  but  be- 
fore taking  the  deed." 

§  707.  Same — Usury — Bona    fide    purchaser. — It    is    a 

well  settled  rule  that  the  title  of  an  innocent  purchaser  of 
land  at  a  judicial  sale  under  a  mortgage  is  not  affected  by 
the  usurious  character  of  the  mortgage.^'  It  follows  there- 
fore that  a  person  who,  after  the  foreclosure  sale  and  before 
the  expiration  of  the  time  of  redemption,  purchases  the  inter- 
est or  estate  of  the  mortgagee  who  bid  in  the  property,  will 
be  protected  as  a  bona  fide  purchaser.^® 

§  708.  Execution  and  delivery  of  deed. — The  referee  or 
sheriff  making  a  sale  of  mortgaged  premises  under  a  decree 
of  foreclosure,  is  required  to  execute  a  deed  of  the  premises 
to  the  purchaser  on  such  sale.^^  The  deed  may  be  executed 
and  delivered  before  the  sale  is  confirmed ;  ^°  it  will  take  effect 
immediately  upon  delivery,  and  divests  all  parties  to  the  ac- 
tion of  the  title  from  the  time  of  the  sale.^^ 

The  court  will  not  order  the  officer  making  a  sale  to  exe- 
cute and  deliver  a  deed  to  the  purchaser  until  the  whole  of 

'^^  Barber  v.    IVadsworth,   115   N.  '^'^  McLaren  v.  Hartford  Ins.  Co. 

C.  29,  20  S.  E.  178.  5  N.  Y.  151;  Fort  v.  Burch,  6  Barb. 

^'^ Sharp e  v.    Tatnall,  5   Del.   Ch.  (N.  Y.)   60;  Fuller  v.   VanGecsen, 

302;    Holmes    v.    State    Bank,    55  4  Hill   (N.  Y.)   171. 

Minn.  530,  55  N.  W.  555.  But  where  a  purchaser  of  land  at 

18  Holmes  v.  State  Bank  of  Du-  a  sale  under  a  decree  in  chancery, 


luth,  53  Minn.  530,  55  N.  W.  555 

19  N.  Y.  Supreme  Court  Rule  61 

20  See  Mitchell  v.  Bartlett,  51  N 
Y.  447,  aff'g  52  Barb.  (N.  Y.)  319 
Fort  V.  Burch,  6  Barb.  (N.  Y.)  60 
Fuller  V.  Van  Gecsen,  4  Hill  (N 
Y.)  171 ;  Jones  v.  Burden,  20  Ala 
382 ;  Walker  v.  Schiim,  42  111.  462 ; 
Jackson  V.   Warren,  32  III.  331. 


before  confirmation  of  the  sale,  in- 
stitutes a  suit  based  upon  his  title 
acquired  through  such  purchase,  he 
can  obtain  no  relief  predicated  on 
such  title,  even  though  he  should, 
by  a  supplemental  bill,  establish  a 
confirmation  by  the  court  subse- 
quent to  the  filing  of  his  original 


§  709]  DELIVERING  DEED.  1037 

the  purchase  money  has  been  paid  into  court,  even  where  a 
junior  mortgagee  is  the  purchaser  and  a  portion  of  the  money 
which  is  not  paid  in  belongs  to  such  pucrhaser  as  surplus 
money,  and  will  therefore  shortly  have  to  be  returned  to  him.^^ 
When  the  deed  is  not  ready  to  be  delivered  at  the  time  fixed 
for  that  purpose,  the  remedy  of  the  purchaser  is  by  motion 
for  leave  to  pay  the  money  into  court  and  to  compel  the 
referee  to  complete  the  same  by  delivering  the  deed.^^ 

It  is  said  that  the  holder  of  a  certificate  of  purchase  at  a 
foreclosure  sale  loses  all  rights  under  the  certificate  by  neg- 
lecting to  apply  for  a  master's  deed  within  the  limit  pro- 
vided by  statute ;  ^*  after  the  time  of  redemption  expires,  he 
is  not  entitled  to  have  the  premises  resold  under  the  decree 
of  foreclosure.^^  And  the  purchaser  will  not  be  entitled  to  a 
deed  after  that  time  even  where  he  has  been  in  actual  posses- 
sion of  the  land  for  more  than  fifteen  years,  claiming  owner- 
ship, and  has  paid  all  the  taxes  assessed  thereon.^® 

The  supreme  court  of  Michigan,  in  the  case  of  McCammon 
V.  Detroit,  Lansing  and  Northern  Railroad  Company,^'  say 
that  the  failure  of  the  sheriff  to  acknowledge  a  deed  upon 
foreclosure  by  advertisement  for  five  days  after  its  filing  will 
not  invalidate  the  sale,  as  depriving  the  owner  of  the  right 
of  redemption  in  such  time  by  paying  the  register  of  deeds, 
as  the  filing  of  the  deed  is  notice  to  such  owner. 

§  709.  Requisites  of  sheriff's  or  referee's  deed. — The 

New  York  Code  provides  that  where  property  is  sold  pursuant  to 
a  decree  or  a  judgment,  which  specifies  the  particular  party  or 
parties,  whose  right,  title  or  interest  is  directed  to  be  sold, 
the  deed  must  distinctly  state  in  the  granting  clause  thereof 
whose  right,   title  or  interest  was  sold,   without  naming  in 

bill.    Brooks  v.  Kelly,  63  Miss.  616.  25  Peterson  v.  Emmerson,  135  111. 

22  Battershall  v.  Davis,  23  How.  55,  25  N.  E.  842 ;  School  Trustees  v. 

(N.  Y.)  Pr.  383.  Love,  34  111.  App.  418. 

^^  Clason  V.  Corley,  5  Sandf.   (N.  ^^  Peterson  \.  Emmerson,  135  111. 

Y.)  447.  55,  25  N.  E.  842. 

24  As   111.   Rev.  Stat.  c.  77,  §  30.  27  103  Mich.  104,  61  N.  W.  273. 


1038  MORTGAGE    FORECLOSURES.  [§    710 

that  clause  any  of  the  other  parties  to  the  action ;  otherwise, 
the  purchaser  will  not  be  bound  to  accept  the  conveyance, 
and  the  officer  executing  it  will  be  liable  for  such  damages 
as  the  purchaser  may  sustain  by  the  omission,  whether  he 
accepts  or  refuses  the  conveyance.^* 

This  provision  of  the  Code  has  been  held  to  apply  to  a 
deed  executed  at  a  mortgage  foreclosure  sale,  as  well  as  to 
a  deed  executed  upon  the  sale  of  property  pursuant  to  an 
execution. ^^  A  referee  selling  under  a  decree  of  foreclosure 
is  required  to  comply  with  said  provision  of  the  Code,  by 
inserting  in  the  deed  of  conveyance  the  names  of  the  parties 
who  executed  the  mortgage  foreclosed,  and  by  stating  that 
all  the  right,  title  and  interest  which  said  mortgagors  had  at 
the  time  of  the  execution  of  the  mortgage,  was  sold  and  there- 
by conveyed.*" 

§  710.  Error  in  description  in  mortgage — Correcting 
in  deed. — Where  there  is  a  mistake  in  the  description  of 
the  property  as  given  in  the  mortgage,  it  may  be  corrected 
by  a  proper  proceeding  before  foreclosure,  or  in  the  action 
to  foreclose  the  mortgage;  but  where  such  mistake  has  been 
carried  into  the  decree  of  foreclosure,  and  into  all  the  proceed- 
ings thereunder,  a  purchaser  at  the  sheriff's  sale  cannot  main- 
tain an  action  to  correct  the  decree  and  the  subsequent 
proceedings  although  the  sheriff  at  the  sale  may  have 
pointed  out,  as  the  property  which  he  was  selling,  the  prop- 
erty that  ought  to  have  been  described  in  the  mortgage,  be- 
cause the  authority  of  the  sheriff  to  sell  is  limited  to  the 
property  actually  described  in  the  decree  and  order  of  sale.^^ 

Yet  in  a  case  where  a  mistake  was  made  in  the  description 
of  certain  premises  mortgaged,  which  mistake  was  carried 
through  all  the  proceedings  to  foreclose  the  mortgage,  sale 

28  N.  Y.  Code  Civ.  Proc.  §  1244.  (N.  Y.)   N.  C.  88,  12  Hun  (N.  Y.) 

^^Randell  v.    VonEllcrt.   12  Hun  577. 

(N.  Y.)-577.  ^^  Miller  v.  Kolb,  47  Ind.  220. 

^^Randell  v.   Von  Ellert.  4  Abb. 


§  710]  DELIVERING  DEED.  1039 

of  the  premises,  confirmation  of  sale,  and  deed  to  the  pur- 
chaser, but  it  appeared  that  the  premises  intended  to  be 
mortgaged  had  actually  been  appraised  and  sold  under  such 
mortgage,  and  the  purchaser  had  taken  possession  of  the 
same,  the  court  held  that  no  injury  to  the  heirs  of  the  mort- 
gagor being  shown,  the  grantee  of  the  purchaser  was  entitled 
to  a  decree  correcting  the  mistake  and  quieting  his  title  in 
said  premises,  but  at  his  own  cost  and  expense.^^ 

The  supreme  court  of  New  York  say  that  an  error  in  a 
deed  and  mortgage  in  describing  the  starting  point  cannot  be 
remedied  by  proceedings  to  correct  the  misdescription,  taken 
in  a  foreclosure  proceeding  after  the  sale,  without  notice  to 
the  purchaser;  and  as  such  misdescription  renders  the  title 
unmarketable,  the  purchaser  at  the  foreclosure  will  be  relieved 
from  his  purchase.^' 

A  purchaser  at  a  mortgage  foreclosure  sale  cannot  acquire 
the  title  to  lands  not  described  in  the  mortgage,  although 
such  lands  may  be  described  in  the  complaint  and  judgment.^* 
And  where,  by  mistake,  real  estate  belonging  to  one  person 
is  mortgaged  by  another  as  'his  property,  and  is  sold  under 
a  decree  of  foreclosure  to  a  purchaser  who  has  no  notice  of 
such  mistake,  it  has  been  held  that  such  purchaser  cannot 
have  the  .ale  set  aside  and  recover  the  purchase  money  bid 
and  paid  by  him  for  such  property  at  the  sale.'* 

^'i  Parker  v.   Starr,  21    Neb.  680,  ^^Hoopes      v.      Auburn      Water 

33  N.  W.  424.  Works  Co.  37   Hun    (N.  Y.)    568, 

Statements   by   one   who   was   at  574. 

the  time  the  owner  and  in  posses-  It  is  thought  that  property  omit- 

sion  of  land,  as  to  where  he  under-  ted  by  accident  from  a  trust  deed, 

stood  the  boundary  Hne  to  be,  are  when    both    parties    supposed    the 

admissible  as  against  the  purchaser  deed    covered    it,    may    be    reached 

at  the  sale  on  foreclosure  of  a  mort-  and     sold     in     a     foreclosure     suit, 

gage   then   on   the   latul.     Flagg   v.  Shepard  v.  Pepper,  133  U.   S.  626. 

Mason,  64,  6  N.  E.  702.  33  L.  ed.  706,  10  Sup.  Ct.  Rep.  438. 

^^  Fitzpaliick  w  Szi!eeney,S6B.\.m  ^^Neal  v.   Gillaspy,  56   Ind.   451, 

(N.  Y.)    159,  30  N.  Y.  S.  R.  525,  26  Am.  Rep.  37. 
9  N.  Y.  Supp.  219,  aff'd  in  121  N. 
Y.  707  mem. 


1040  MORTGAGE    FORECLOSURES.  [§    711 

And  it  is  said  that  a  mortgage  which  describes  other  lands 
of  the  mortgagor  than  those  intended  by  the  parties  will  not 
be  reformed  by  substituting  those  originally  intended,  when 
the  lands  described  therein  have  been  sold  on  foreclosure  and 
the  sum  realized  was  the  full  amount  of  the  mortgage.^^ 

Where,  by  inadvertence,  the  referee's  deed  embraces  the 
w^hole  mortgaged  premises,  a  portion  of  which  had  previously 
been  released  from  the  lien  of  the  mortgage,  and  was  ex- 
cepted from  the  operation  of  the  decree  of  foreclosure,  the 
purchaser  will  acquire  no  title  to  the  portion  so  released." 
And  the  same  would  be  true  even  if  the  portion  of  the  premises 
so  released  were  embraced  in  the  decree,  but  were  not  offered 
at  the  sale.'^ 

§  711.  Variance  of  description  in  mortgage,  decree  and 
deed. — In  a  New  York  case  it  appeared  that  there  was  a 
clerical  error  in  the  decree  of  foreclosure,  which  consisted  in 
giving  a  distance  in  the  description  of  the  premises  as  "about 
193  feet,  4  inches"  instead  of  "about  123  feet,  4  inches," 
which  was  the  correct  distance.  The  mortgage  described  the 
premises  sold  correctly,  and  they  were  correctly  described  in 
the  lis  pendens  and  in  all  the  proceedings  except  the  judgment. 
Following  the  words  of  description  in  the  judgment  was  a 
reference  to  a  deed,  executed  by  the  plaintiff  to  the  defendant, 
in  which  the  description  was  correct.  The  referee  sold  the 
premises  described  in  the  mortgage,  and  there  was  no  pre- 
tence that  the  purchaser  was  misled.  The  report  of  sale 
was  correct  in  its  description,  and,  after  the  sale,  an  order 
of  the  court,  amending  the  judgment  by  correcting  the  errone- 
ous description  of  the  premises,  was  entered  nunc  pro  tunc, 
upon  consent  of  all  the  parties  who  had  appeared  in  the  action. 
On  motion  to  compel  the  purchaser  to  accept  the  title,  it  was 

36  Ray  V.  Ferrell,  127  Ind.  570,  27  Commerce  v.  Lock,  17  Wash.  528, 
N.  E.  159.  61  Am.  St.  Rep.  923,  50  Tac.  478. 

37  Laverty  v.  Moore,  32  Barb.  (N.  38  Laverty  v.  Moore,  2Z  N.  Y.  658, 
Y.)  347.    See  also  National  Bank  of  aff'g  32  Barb.  (N.  Y.)  347. 


§  712]  DELIVERING  DEED.  1041 

held  that  the  court  had  ample  power  to  make  such  amend- 
ment.^^ 

Where  a  parcel  of  land  was  sold  under  a  decree  of  fore- 
closure and  conveyed  to  the  purchaser  under  an  erroneous 
impression  that  the  mortgage  covered  the  entire  tract,  the 
value  of  the  entire  tract  having  been  bid  and  paid,  and  the 
purchaser  having  been  placed  in  possession  thereof,  and  it 
was  afterwards  discovered  that,  from  a  mistake  in  the  de- 
scription, the  mortgage  did  not  cover  the  entire  premises  in- 
tended to  be  mortgaged  and  that  by  reason  thereof  the  legal 
title  failed,  it  was  held  that  the  purchaser  was  entitled  to  be 
protected  in  the  peaceable  possession  of  the  land  purchased.*" 
But  it  is  the  general  rule  that  the  title  of  a  purchaser  at  a 
mortgage  foreclosure  sale  is  co-extensive  with  the  description 
contained  in  the  mortgage,  the  bill  to  foreclose,  and  the  decree 
under  which  the  sale  is  made." 

§  712.  Title  of  purchaser  relates  back  to  time  of  exe- 
cuting mortgage — Reserving  easement. — The  title  of  the 
purchaser  at  a  sale  under  a  decree  of  foreclosure  relates  back 
to  the  date  of  the  delivery  of  the  mortgage,  as  against  all 
intervening  purchasers  and  incumbrancers  who  were  made 
parties  to  the  action,  or  who  became  interested  in  the  premises 

39  Wood  V.  Martin,  66  Barb.   (N.  The  Supreme  Court  of  Iowa,  in 

Y.)    241.     See  Hogan  v.  Hoyt,  37  the  case  of  Hardin  v.  Iowa  Rail- 

N.  Y.  300;  Hotaling  v.  Marsh,   14  road  and  Construction  Company,  78 

Abb.    (N.  Y.)    Pr.   161;  Alvord  v.  Iowa,  726,  43  N.  V^.  543,  6  L.R.A. 

Beach,   5   Abb.    (N.   Y.)    Pr.   451;  52,  40  Am.  &  Eng.  R.  Cas.  394,  say 

Woodruff  V.   Wicker,  2  Bosw.   (N.  that   on   foreclosure   of   a   deed   of 

Y.)  613;  Close  w.  Gillespey,  3  Johns.  trust  on  land  across  which  a  rail- 

(N.  Y.)  518.  road  is  constructed,  a  djscree  should 

**  Waldron  v.  Leston,  15  N.  J.  Eq.  not  except  the  right  of  way  from 

(2   McCart.)    126.     See  De   Rimer  the  sale,  where  the  de^ds   for  the 

V.  Cantillon,  4  Johns.  Ch.   (N.  Y.)  land,  and  the  trust  created  therein, 

85.  make  no  exception  thereof,  and  the 

^'^McGee  v.  Smith,  16  N.  J.  Eq.  record  does  not  show  that  there  is 

(1  C.  E.  Gr.)  462.     See  also  Stew-  any  right  of  way  through  the  lands. 
art  V.  Wilson,  141  Ala.  405,  109  Am. 
St.  Rep.  33,  37  So.  550. 

Mortg.  Vol.  II.— 66. 


1042 


MORTGAGE    FORECLOSURES. 


[§  712 


pendente  lite}^  All  incumbrances  and  liens,  and  all  con- 
ditions, reservations  and  restrictions  which  the  mortgagor 
may  have  imposed  upon  the  property  subsequently  to  the 
execution  of  the  mortgage,  will  be  extinguished.*^ 

Thus,  a  plaintiff,  being  the  owner  of  a  lot  which  was 
subject  to  a  mortgage,  conveyed  it  to  M.,  reserving  an  ease- 
ment therein  for  light  and  air  to  the  windows  of  its  church 
adjoining,  M.  assuming  the  mortgage.  M.  conveyed  the  lot, 
through  a  third  person,  to  his  wife,  subject  to  the  same  mort- 
gage, but  without  an  assumption  on  her  part  to  pay  the  amount 
thereof.     Upon  foreclosure  of  the  mortgage,  the  wife  of  M. 


^^  Jackson  V.  Ramsey,  3  Cow.  (N. 
Y.)  75,  15  Am.  Dec.  242;  Fuller  v. 
VanGeesen,  4  Hill  (N.  Y.)  171; 
Klock  V.  Cronkhite,  1  Hill  (N.  Y.) 
107;  Bissell  v.  Payn,  20  Johns.  (N. 
Y.)  3;  Jackson  v.  Dickenson,  15 
Johns.  (N.  Y.)  309,  8  Am.  Dec.  336; 
Jackson  V.  Bull,  1  Johns.  Cas.  (N. 
Y.)  81;  Lathrop  v.  Ferguson,  22 
Wend.  (N.  Y.)  216;  Nellis  v.  Lath- 
rop, 22  Wend.  (N.  Y.)  121,  122,  34 
Am.  Dec.  285;  People's  Savings 
Bank  V.  Hodgon,  64  Cal.  95;  Rug- 
gles  V.  First  Nat.  Bank,  43  Mich. 
192;  Gamble  v.  Horr,  40  Mich.  561; 
Barnard  v.  Wilson,  74  Cal.  512,  16 
Pac.  307;  Champion  v.  Hinkle,  45 
N.  J.  Eq.  (18  Stew.)  162,  16  Atl. 
701,  12  N.  J.  L.  J.  87;  Moulton 
V.  Cornish,  61  Hun  (N.  Y.)  438,  16 
N.  Y.  Supp.  267,  41  N.  Y.  S.  R. 
41. 

The  purchaser  at  a  mortgage 
foreclosure  sale  takes  the  place  of 
the  mortgagee  in  strict  foreclo- 
sure at  common  law.  Champion  v. 
Hinkle,  45  N.  J.  Eq.  (18  Stew.) 
162,  16  Atl.  701,  12  N.  J.  L.  J.  87. 
See  post,  chap.  xxxv.  The  whole 
title  vests  in  him  on  his  receipt  of  a 
deed  to  the  premises  from  the 
officer    making    the    sale;    and    the 


title  of  such  purchaser  relates  back 
to  the  time  of  the  execution  of  the 
mortgage  foreclosed,  and  he  suc- 
ceeds as  well  to  the  title  and  estate 
acquired  by  the  mortgagee  by  the 
delivery  of  the  mortgage  deed  as  to 
the  estate  the  mortgagor  had  at 
the  time  of  the  execution  of  the 
mortgage.  Champion  v.  Hinkle,  45 
N.  J.  Eq.  (18  Stew.)  162,  16  Atl. 
701,  12  N.  J.  L.  J.  87. 

The  purchaser's  title  is  adverse 
to  an  estate  created  by  the  convey- 
ance of  the  land  by  the  mortgagor, 
subsequent  to  the  execution  of  the 
mortgage;  and  the  purchaser's  fail- 
ure to  appear  in  the  probate  court 
and  ask  for  distribution  to  himself 
on  settlement  of  such  estate  cannot 
prejudice  his  title.  Barnard  v.  Wil- 
son, 74  Cal.  512,  16  Pac.  307. 

*3  Arterburn  v.  Beard,  86  Neb. 
7ZZ,  126  N.  W.  379;  King  v.  Mc- 
Cully,  38  Pa.  St.  76.  See  Rector  v. 
Mack,  93  N.  Y.  488,  45  Am.  Rep. 
260;  Davis  v.  Connecticut  Mut. 
Life  Ins.  Co.  84  111.  508;  Wykes  v. 
City  of  Caldwell,  71  Kan.  459,  80 
Pac.  941 ;  Nichols  v.  Tingstad,  10 
N.  D.  172,  86  N.  W.  694;  O'Brien 
V.  Kluever,  4  Neb.  (Unof.)  571,  95 
N.  W.  595. 


§  713]  DELIVERING  DEED.  1043 

became  the  purchaser.  In  an  action  to  restrain  her  from  ob- 
structing the  light  and  air  to  the  windows  of  said  church, 
it  was  held  that  under  her  foreclosure  deed,  Mrs  M.  acquired 
an  absolute  title,  unincumbered  by  the  easement,  that  she 
owed  no  duty  to  the  plaintiff  or  mortgagee,  requiring  her  to 
pay  off  the  mortgage,  and  that  there  were  no  equitable  rights 
against  her  w'hich  would  prevent  her  from  asserting  her  title.** 
It  seems  that  in  such  a  case  the  plaintiff,  to  save  its  easement, 
should  have  appeared  in  the  foreclosure  suit,  and  bid  the  full 
amount  of  the  mortgage  debt  and  costs  upon  the  sale,  subject 
to  the  easement.*^ 

§  713.  Time  for  redemption — Effect  on  title  of  purchas- 
er.— In  those  states  where  a  period  of  time  is  allowed  for 
redemption,  after  the  sale  of  the  premises  under  a  mortgage 
foreclosure,  a  purchaser  of  land  at  such  sale  requires  no  legal 
title,  nor  right  to  be  invested  with  a  legal  title,  until  the  period 
for  redemption  has  expired.*^  He  cannot  maintain  an  eject- 
ment or  other  possessory  action  on  his  certificate  of  pur- 
chase,*' for  he  will  not  be  entitled  to  possession  until  the 
officer  making  the  sale  has  executed  and  delivered  to  him  a 
deed  of  the  premises.** 

He  acquires  no  title  to  the  premises  until  the  period  for 
redemption  has  passed,  and  he  is  entitled  to  his  deed.  His 
deed,  when  executed,  will  relate  back  to  the  time  of  the  sale  in 
order  to  cut  off  intervening  incumbrances.  His  title  will 
become  absolute  only  when  his  right  to  a  deed  accrues; 
until  such  time,  he  will  have  only  an  unmatured  right  to  a 

^Rector  v.  Mack,  93  N.  Y.  488,  217  111.   105,   1   L.R.A.(N.S.)    1079, 

45  Am.  Rep.  260.  75  N.  E.  447.    See  Carroll  v.  Haigh, 

^^  Rector  v.  Mack,  93  N.  Y.  488,  108  III.  App.  264. 

45  Am.  Rep.  260.  *'^  Rockwell  v.  Servant,  63  111.  424. 

46  Rockwell    V.    Servant,    63    111.  «  Q'Brian  v.  Fry.  82  111.  87,  274 ; 

424;  Delahay  v.  McConnel,  5  111.  (4  Bennett  v.  Matson,  41  111.  333;  Pur- 

Scam.)  156;  Bartlett,  as  trustee,  etc.  ser  v.  Cady,  120  Cal.  214,  52   Pac. 

V.  Amberg,  as  receiver,  etc.  92  111.  489.     See  Costigan  v.  Truesdell.  119 

App.  Z77;  Schaeppi  v.  Bartholomee,  Ky.  70,  115  Am.  St.  Rep.  241,  83  S. 


1044  MORTGAGE    FORECLOSURES.  [§    714 

deed.*^  Under  the  Massachusetts  statute  it  seems  that  it  is 
not  essential  that  a  Hmitation  to  the  time  for  redemption  be 
expressly  fixed,  though  in  some  cases  it  has  been  held  that 
this  omission  has  left  the  mortgage  without  foundation  for 
foreclosure.^** 

§  714.  All  fixtures  pass  to  purchaser  under  referee's 
deed. — The  rules  as  to  fixtures  which  pass  to  a  purchaser 
on  a  mortgage  foreclosure  sale  are  the  same  as  those  which 
govern  a  conveyance  from  a  grantor  to  a  grantee. ^^  What- 
ever is  attached  to  the  freehold  and  would  pass  under  a  deed 
as  between  a  vendor  and  a  vendee,  will  pass  as  between  a 
mortgagor  and  a  mortgagee.*^  When  a  mortgagor,  subse- 
quently to  the  execution  of  a  mortgage,  places  machinery  or 
other  fixtures  upon  the  mortgaged  premises,  the  purchaser  of 
such  premises,  at  a  foreclosure  sale,  will,  therefore,  acquire 
title  to  the  fixtures  as  a  part  of  the  realty.^^ 

W.    98;    Dolan    v.    Midland    Blast  102  Me.  251,  66  Atl.  539.    See  ante, 

Furnace  Co.  126  Iowa,  254,  100  N.  §§  490,  491,  492. 

W.  45.  ^^  Miller  v.   Plumb,   6  Cow.    (N. 

^^  Stephens  V.  Illinois  Mutual  Fire  Y.)  665,  16  Am.  Dec.  456;  Robin- 
Ins.  Co.  43  111.  327,  331.    See  John-  son  v.  Preswick,  3  Edw.  Ch.    (N. 
son  V.  Baker,  38  III.  98,  87  Am.  Dec.  Y.)   246;   Union  Bank  v.  Emerson, 
29Z;    Sweezy    v.    Chandler,    11    111.  15  Mass.  159. 
445.  ^3  Voorhees  v.   McGinnis,  48   N. 

^^  Shepard     v.     Richardson,     145  Y.   278;    Snedeker  v.    Warring,    12 

Mass.  32,  11  N.  E.  738.  N.  Y.  170;  Bishop  v.  Bishop,  11  N. 

^"^  Snedeker  V.  Warring,  12  N.  Y.  Y.  123,  62  Am.  Dec.  68;  Rice  v. 
170,  174.  See  Bishop  v.  Bishop,  Dewey,  54  Barb.  (N.  Y.)  455; 
11  N.  Y.  123,  126,  62  Am.  Dec.  68;  Gardner  v.  Finley,  19  Barb.  (N.  Y.) 
Bank  of  Utica  v.  Finch,  3  Barb.  Ch.  317;  Miller  v.  Plumb,  6  Cow.  (N. 
(N.  Y.)  293,  299,  49  Am.  Dec.  175;  Y.)  665,  16  Am.  Dec.  456;  Robin- 
Robinson  V.  Preswick,  3  Edw.  Ch.  son  v.  Preswick,  3  Edw.  Ch.  (N. 
(N.  Y.)  246;  Main  v.  Schwarz-  Y.)  246;  Babcock  v.  Utter,  32  How. 
waelder,  4  E.  D.  Smith,  (N.  Y.)  (N.  Y.)  Pr.  439,  1  Abb.  App.  Dec. 
273;  Winslow  v.  Merchants'  Ins.  (N.  Y.)  27;  Sullivan  v.  Toole,  26 
Co.  45  Mass.  (4  Mete.)  306.  38  Am.  Hun  (N.  Y.)  203;  Mainv.  Schwara- 
Dec.  368;  Union  Bank  v.  Emerson,  waelder,  4  E.  D.  Smith  (N.  Y.) 
15  Mass.  159 ;  Longstaff  v.  Meagoe,  273 ;  Sands  v.  Pfeiffer,  10  Cal.  258 ; 
2  Ad.  &  E.  167 ;  Young  v.  Chandler,  Clore    v.    Lambert,    78    Ky.    224 ; 


§  714] 


DELIVERING    DEED. 


1045 


Thus,  the  owner  of  real  estate,  with  a  flouring  mill  thereon, 
which  was  subject  to  a  mortgage,  procured  new  machinery 
for  such  mill  on  credit,  upon  an  agreement  that  the  title  to 
the  machinery  should  not  pass  to  the  purchaser  until  it  was 
fully  paid  for.  The  machinery  was  attached  to  the  realty 
as  was  intended.  The  purcliaser  upon  the  foreclosure  of 
such  mortgage  was  held  to  take  title  to  the  machinery  as 
against  the  vendor  of  it,  notwithstanding  the  contract  and 
the  vendee's  failure  to  pay  therefor.^* 

In  determining  whether  chattels  affixed  to  land  will  pass 
under  a  mortgage  of  the  realty,  it  is  immaterial  whether 
such  chattels  were  attached  before  or  after  the  execution  of 
the  mortgage,  because,  as  a  general  rule,  they  become  bound 
by  the  mortgage  whenever  they  become  a  part  of  the  realty.^^ 


Wight  V.  Gray,  73  Me.  297;  Union 
Bank  V.  Emerson,  15  Mass.  159; 
Lackas  v.  Bahl,  43  Wis.  53 ;  Canning 
V.  Owen,  22  R.  I.  624,  84  Am.  St. 
Rep.  858,  48  Atl.  1033;  Gunderson, 
as  rec'r,  etc.  v.  Swarthout,  104  Wis. 
186,  76  Am.  St.  Rep.  860,  80  N.  W. 
465 ;  Lord  v.  Detroit  Savings  Bank, 
132  Mich.  510,  93  N.  W.  1063.  See 
Equitable  Guarantee  &  Trust  Co. 
as  trustee,  etc.  v.  Knowles,  8  Del. 
Ch.  106,  67  Atl.  961. 

For  a  full  collection  of  the  au- 
thorities as  to  what  are,  and  what 
are  not,  fixtures,  see  ante,  §§  490, 
491,  492.  See  Walker  v.  Shertnan, 
20  Wend.  (N.  Y.)  636;  also  Pot- 
ter V.  Cromwell,  40  N.  Y.  287,  100 
Am.  Dec.  485;  Butler  v.  Page,  48 
Mass.  (7  Mete.)  40,  39  Am.  Dec. 
757;  Winslow  v.  Merchants'  Ins. 
Co.  45  Mass.  (4  Mete.)  306,  38  Am. 
Dec.  368;  Noble  v.  Bosworth,  36 
Mass.  (19  Pick.)  314;  Crane  v. 
Brigham.  11  N.  J.  Eq.  (3  Stockt.) 
29;  Tcaff  v.  Hewitt,  1  Ohio  St.  511, 
529,  530,  59  Am.  Dec.  734;  Christian 
V.  Dripps,  28   Pa.   St.  271;  Hill  v. 


Wyntworth,  28  Vt.  428;  Walmsley 
V.  Milne,  7  C.  B.  N.  S.  115,  29  L.  J. 
C.  P.  97;  6  Jur.  N.  S.  125,  97  Eng. 
C.  L.  114;  Lancaster  v.  Eve,  5  C.  B. 
N.  S.  717,  28  L.  J.  C.  P.  235,  5  Jur. 
N.  S.  683,  94  Eng.  C.  L.  717.  As  to 
removed  fixtures,  see  ante,  §  302. 

^^  Bass  Foundry,  &c.  Works  v. 
Gallentine,  99  Ind.  525. 

^^Snedeker  v.  Warring,  12  N.  Y. 
170;  Rice  v.  Dewey,  54  Barb.  (N. 
Y.)  455;  Gardner  v.  Finley,  19 
Barb.  (N.  Y.)  317;  Sullivan  v. 
Toole,  26  Hun  (N.  Y.)  203;  Phin- 
ney  v.  Day,  76  Me.  83;  Corliss  v. 
McLagin,  29  Me.  115;  Butler  v. 
Page,  48  Mass.  (7  Mete.)  40.  39 
Am.  Dec.  757;  Winslow  v.  Mer- 
chants' Ins.  Co.  45  Mass.  (4  Mete.) 
306,  38  Am.  Dec.  368;  Peirce  v. 
Goddard,  39  Mass.  (22  Pick.)  559, 
33  Am.  Dec.  764;  Curry  v.  Schmidt, 
54  Mo.  515;  Powers  v.  Dennison, 
30  Vt.  752;  Preston  v.  Briggs.  16 
Vt.  124.  See  Williams  v.  Chicago 
Exhibition  Co.  188  III.  19,  58  N.  E. 
611. 


1046  MORTGAGE   FORECLOSURES.  |[§   715 

§  715.  Exceptions  to  above  rule. — To  this  general  rule, 
however,  there  are  some  exceptions,  as  where  chattels  are 
attached  to  real  estate  with  the  intention  that  they  shall  not 
thereby  become  a  part  of  the  freehold;  such  intention  will 
control,  as  a  general  rule,  and  a  mortgage  of  the  real  estate 
will  not  bind  such  chattels.®^  And  it  has  been  held  that  a 
mortgage  will  not  bind  personal  property  which  has  been 
attached  to  the  freehold  subsequently  to  the  execution  of  the 
mortgage,  where  equities  in  favor  of  third  persons  require 
that  it  should  continue  to  be  considered  as  personal  property.^' 
It  is  well  settled  that  where,  by  the  express  agreement  of  the 
owner  of  the  equity  of  redemption  and  the  owner  of  chattels 
affixed  to  the  land,  such  chattels  are  to  remain  personal  prop- 
erty, they  will  not  become  a  part  of  the  realty,  but  will  be 
subject  to  removal  by  the  owner  at  any  time.®' 

In  Rowland  v.  West,®^  it  is  held  that  a  purchaser  at  a  sale 
upon  foreclosure  of  a  mortgage  upon  a  mill  to  which  chattels 
have  been  affixed  since  the  execution  of  the  mortgage,  cannot 
recover  such  chattels  from  the  mortgagee  in  a  mortgage  upon 
such  chattels,  executed  and  duly  filed  before  the  execution  of 
the  real  estate  mortgage,  and  before  the  chattels  were  con- 
verted into  fixtures. 

A  greenhouse  with  furnaces  placed  on  leased  property  by 
the  tenant  with  the  intention  of  removing  the  same  when  the 
lease  expires,  and  which  can  be  removed  without  injury  to  the 
estate,  will  not  pass  to  the  purchaser  on  foreclosure  against 
the  landlord.^" 

B6  See  Sheldon  v.  Edzvards,  35  N.  13  Am.  Rep.  537;  Ford  v.  Cobb,  20 

Y.  279;  Ford  v.  Cobb,  20  N.  Y.  344;  N.   Y.  344;  Mott  v.  Palmer,  1   N. 

Bernheimer  v.  Adams,  70  App.  Div.  Y.    564;    Farrar   v.    Chauffet'ete,    5 

114,  75  N.  Y.  Supp.  93.  Den.    (N.  Y.)   527;  Smith  v.  Ben- 

67  See  Tifft  V.  Norton,  53  N.  Y.  son,  1  Hill  (N.  Y.)  176.  See  Con- 
377,  13  Am.  Rep.  537;  Voorhees  v.  dit  v.  Goodzvin,  44  Misc.  312,  89  N. 
McGinnis,  48  N.  Y.  278.     See  also  Y.  Supp.  827. 

/.  L.  Mott  Iron  Works  v.  Middle  59  62  Hun  (N.  Y.)  583,  17  N.  Y. 

States  Loan,  Building  &  Construe-  Supp.  330,  43  N.  Y.  S.  R.  698. 

Hon  Co.  17  App.  D.  C.  584.  eo /^^a'c^    v.    Latshaw,    15    Colo. 

68  Tifft  V.  Horton,  S3  N.  Y.  377,  App.  420,  62  Pac.  627. 


S  716J 


DELIVERING   DEED. 


1047 


Chandeliers  and  brackets  placed  in  a  house  by  one  other 
than  the  owner  of  the  property  are  moveables  and  do  not  pass 
to  the  purchaser  of  the  property  at  foreclosure  sale.^^ 

§  716.  All  permanent  improvements  pass  under  ref- 
eree's deed. — All  additions  of  a  permanent  character  by 
way  of  improvements  made  on  mortgaged  premises  by  the 
mortgagor  or  the  owner  of  the  equity  of  redemption,  are  re- 
garded as  part  of  the  mortgaged  estate  and  will  inure  to  the 
benefit  of  the  holder  of  the  mortgage,  and  will  pass  to  the  pur- 
chaser on  a  foreclosure  sale.^^  Thus,  where  a  mortgagor, 
v^hile  the  owner  of  the  equity  of  redemption,  erected  a  house 
upon  the  mortgaged  premises,  without  any  agreement  with 
the  mortgagee,  it  was  held  that  it  became  a  part  of  the  realty 
and  passed  with  it  to  the  purchaser  at  the  sale  on  the  fore- 
closure of  the  mortgage ;  ^^  and  the  same  rule  has  been  held 


61  L'Hote  &  Co.  V.  Fulham,  51 
La.  Ann.  780,  25  So.  655. 

^^  Baird  v.  Jackson,  98  111.  78; 
Wood  V.  Whelen,  93  111.  153 ;  Engle- 
hart-Hitchcock  Co.  v.  Central  In- 
vestment Co.  136  Ga.  564,  71  S.  E. 
787.  See  Osark  v.  Adams,  73  Ark. 
227,  83  S.  W.  920;  Baird  v.  Jackson, 
98  111.  78;  Wood  v.  IVhelen,  93  111. 
157;  Matzon  v.  Griffin,  78  111.  477; 
Dooley  v.  Crist,  25  III.  551;  Mann  v. 
Mann,  49  111.  App.  472;  Townsend 
V.  Payne,  42  La.  An.  909,  8  So. 
626;  Partridge  v.  Hemenway,  89 
Mich.  454,  28  Am.  St.  Rep.  322,  50 
N.  W.  1084;  Higginbottom  v.  Ben- 
son, 24  Neb.  461,  8  Am.  St.  Rep. 
211,  39  N.  W.  418;  Turner  v.  Me- 
bane,  110  N.  C.  413,  28  Am.  St.  Rep. 
697,  14  S.  E.  974;  Dakota  Loan  & 
T.  Co.  V.  Parmalee,  5  S.  D.  341,  58 
N.  W.  811. 

Personalty  aflfixed  to  freehold 
cannot  be  claimed  by  the  purchaser 
where,    by    express    agreement    be- 


tween the  mortgagor  and  the  owner 
of  the  chattel,  its  character  as  per- 
sonalty was  not  to  be  changed,  but 
was  to  continue  and  be  subject  to 
the  right  of  removal  by  such  owner 
on  failure  of  performance  of  con- 
ditions of  sale.  Brand  v.  McMahon, 
38  N.  Y.  S.  R.  576,  15  N.  Y.  Supp. 
39. 

The  supreme  court  of  Louisiana, 
in  Townsend  v.  Payne,  42  La.  An. 
909,  8  So.  626,  say  that  movable 
property  placed  upon  a  plantation 
before  the  sale  of  an  undivided  half 
thereof,  together  with  the  movable 
property,  to  one  who  executes  his 
purchase-money  mortgage  therefor, 
is  liable  to  seizure  by  the  holder  of 
notes  secured  by  the  mortgage ;  but 
movable  property  placed  upon  it  by 
the  vendor  and  vendee  after  enter- 
ing into  a  planting  partnership  is 
not  so  liable. 

6^  Matzon  V.  Griffin,  78  111.  477; 
Dooley  v.  Crist,  25  111.  551. 


1048 


MORTGAGE    FORECLOSURES. 


[§  716 


to  apply  to  a  building  erected  upon  mortgaged  premises  by 
the  husband  of  the  mortgagor.^* 

Where  a  mortgagor  erected  a  frame  building  by  the  side 
of  his  mill,  to  be  used  as  an  office  in  connection  with  the 
mill,  the  building  was  held  to  be  a  fixture,  although  it  was 
erected  after  the  mortgage  was  given  and  was  intended  to 
be  only  temporary,  and  was  neither  attached  to  the  mill  nor 
secured  to  the  ground,  but  rested  upon  wooden  blocks  stand- 
ing upon  the  surface  of  the  earth.^^  Where  the  owner  of  the 
equity  of  redemption  makes  improvements  upon  land  that 
is  mortgaged,  he  will  not  be  entitled  to  an  allowance  for  them 
as  against  the  mortgagor,  but  in  some  cases  he  may  be  allowed 
for  such  improvements  out  of  the  surplus  moneys.®^ 

The  mortgagor  is  not  entitled  to  any  abatement  for  expenses 
incurred  for  betterments  ^'  or  improvements  of  any  kind.*' 


64  Wright  v.  Gray,  73  Me.  297. 

65  State  Savings  Bank  v.  Kerche- 
val,  65  Mo.  682,  27  Am.  Rep.  310. 
See  also  Butler  v.  Page,  48  Mass. 
(7  Mete.)  40,  39  Am.  Dec.  757. 

As  to  what  improvements  are  fix- 
tures see  Stockwell  v.  Campbell,  39 
Conn.  362,  12  Am.  Rep.  393 ;  Arnold 
V.  Crowder,  81  111.  56,  25  Am.  Rep. 
260;  Ottumwa  Woolen  Mill  Co.  v. 
Hawlay,  44  Iowa,  57,  24  Am.  Rep. 
719;  McConnell  v.  Blood,  123  Mass. 
47,  25  Am.  Rep.  12;  Richardson  v. 
Borden,  42  Miss.  71,  2  Am.  Rep. 
595 ;  Jarechi  v.  Philharmonic  So- 
ciety, 79  Pa.  St.  403,  21  Am.  Rep. 
78;  Meigs'  Appeal,  62  Pa.  St.  28, 
1  Am.  Rep.  372;  Hutchins  v.  Mas- 
tcrson,  46  Tex.  551,  26  Am.  Rep. 
286. 

66  Wharton  v.  Moore,  84  N.  C. 
479,  Z7  Am.  Rep.  627.  See  Rice  v. 
Dewey,  54  Barb.  (N.  Y.)  455; 
Union  Water  Co.  v.  Murphy,  22 
Cal.  621;  Baird  v.  Jackson,  98  111. 
78;   Martin  v.   Beatty,  54  Ilf.    100; 


McCumber  v.  Oilman,  15  111.  381 ; 
Childs  V.  Dolan,  87  Mass.  (5  Al- 
len) 319.  See  also  Decker  v.  Zeluff, 
23  App.  Div.  107,  48  N.  Y.  Supp. 
385. 

67  See  2  Kerr  on  Real  Prop.  § 
1316. 

68  Mann  v.  Mann,  49  111.  App. 
472 ;  Dakota  Loan  &  T.  Co.  v. 
Parmalee  (S.  D.)  58  N.  W.  811. 

Changing  and  remodeling  a  mort- 
gaged house,  by  one  upon  whose 
premises  it  has  been  moved  by  a 
grantee  of  the  mortgagor,  newly 
plastering  and  completely  finishing 
the  same,  and  adding  a  new  addi- 
tion and  new  porches  thereto,  and 
placing  the  entire  building  on  a 
stone  foundation,  at  a  cost  of  about 
$600,  does  not  destroy  the  identity 
of  the  mortgaged  building  so  as  to 
defeat  the  mortgagee's  right  to  sub- 
ject it  to  the  payment  of  so  much 
of  his  mortgage  debt  as  remains  un- 
paid after  exhausting  the  mort- 
gaged  lot  on   which    the    building 


717] 


DELIVERING   DEED. 


1049 


§  717.  All  emblements  pass  under  referee's  deed. — The 
crops  growing  on  the  land,  as  well  as  the  land,  are  held  as 
a  security  for  the  mortgage  debt,®^  and  on  the  foreclosure  of 
the  mortgage,  whatever  crops  are  then  growing  upon  the 
mortgaged  premises,  even  if  planted  subsequently  to  the  mak- 
ing of  the  mortgage,  will  pass  to  the  purchaser  at  the  sale, 
whether  they  were  planted  by  the  mortgagor  or  his  tenant,'" 
free  from  all  claim  upon  them  by  such  mortgagor  or  tenant ;  '^ 


originally  stood.  Dakota  Loan  & 
T.  Co.  V.  Parmalee,  5  S.  D.  341,  58 
N.  W.  811. 

A  bona  fide  purchaser  at  a  fore- 
closure sale  of  a  senior  mortgage, 
the  junior  mortgagees  not  having 
been  made  parties,  is,  in  a  suit 
against  him  by  the  junior  mort- 
gagees to  require  him  to  redeem, 
entitled  to  credit  for  improve- 
ments, and  should  not  be  charged 
with  the  rental  value  of  the  prem- 
ises during  his  possession.  Higgin- 
bottom  V.  Benson,  24  Neb.  461,  8 
Am.  St.  Rep.  211,  39  N.  W.  418. 

A  bona  fide  occupant  under 
claim  of  title,  is  entitled  to  com- 
pensation, at  least  as  a  set-off, 
against  mesne  profits ;  but  knowl- 
edge or  notice  of  adversary  rights 
is  fatal  to  the  claim  for  compensa- 
tion, and  a  mortgagee  who  repudi- 
ates the  relation,  or  a  purchaser 
from  him  with  notice,  is  regarded 
as  a  wrong-doer,  and  is  not  en- 
titled to  compensation.  Gresham  v. 
Ware,  79  Alabama,  192. 

The  purchaser  of  a  railroad  un- 
der a  mortgage  cannot  claim  to 
use  a  depot  under  a  contract  made 
by  the  mortgagor  after  the  execu- 
tion of  the  mortgage  without  pay- 
ment of  the  rental  provided  for  in 
the  contract.  St.  Joseph  Union  De- 
pot Co.  V.  Chicago,  R.  I.  &  P.  R. 
Co.  131  Mo.  291,  31  S.  W.  908. 


69  See  Gillett  v.  Balcom,  6  Barb. 
(N.  Y.)  370;  Shepard  v.  Philbrick, 
2  Den.  (N.  Y.)  174;  Lane  v.  King, 
8  Wend.  (N.  Y.)  584,  24  Am.  Dec. 
105;  Toby  v.  Reed,  9  Conn.  216; 
Jones  V.  Thomas,  8  Blackf.  (Ind.) 
428;  JJughes  v.  Graves,  1  Litt. 
(Ky.)  317;  Winslow  v.  Merchants' 
Insurance  Co.  45  Mass.  (4  Mete.) 
310,  38  Am.  Dec.  368;  Cassilly  v. 
Rhodes,  12  Ohio,  88;  Crews  v.  Pen- 
dleton, V.  Leigh  (Va.)  297,  305,  19 
Am.  Dec.  750. 

■^o  And  where  a  tenant,  who  rent- 
ed the  land  pending  a  foreclosure, 
sows  a  crop  of  wheat  after  judg- 
ment in  foreclosure,  and  the  wheat 
is  not  ready  to  harvest  until  after 
the  foreclosure  sale  and  the  sheriff's 
deed  passes,  as  against  the  tenant, 
the  crop  belongs  to  the  purchaser  at 
such  sale.  Goodwin  v.  Smith,  49 
Kan.  351,  31  Pac.  153,  17  L.R.A. 
284,  33  Am.  St.  Rep.  Z72,.  See 
Nichols  V.  Lappin,  105  Mo.  App. 
401,  79  S.  W.  995 ;  Rardin  v.  Bald- 
win, as  adm'r,  etc.  9  Kan.  App.  516, 
60  Pac.  1097. 

71  Gillett  V.  Balcom,  6  Barb.  (N. 
Y.)  370.  Wallace  v.  Cherry,  32  Mo. 
App.  436;  Skilton  v.  Harrel,  5  Kan. 
App.  753,  48  Pac.  177;  Reiley  v. 
Carter,  75  Miss.  798,  65  Am.  St. 
Rep.  621,  23  So.  435;  Jones  v. 
Adams,  2>7  Or.  473,  50  L.R.A.  388, 
82  Am.   St.   Rep.   766,  62   Pac.    16. 


1050  MORTGAGE    FORECLOSURES.  [§    717 

and  on  a  proper  application,  under  some  circumstances,  the 
court  will  provide  for  their  preservation  until  possession  is 
given  to  the  purchaserj^  But  the  purchaser  at  a  foreclosure 
sale  cannot,  before  the  sale  is  confirmed  and  before  he  has 
acquired  possession  of  the  land,  maintain  an  action  in  re- 
plevin for  crops  growing  thereon  at  the  time  of  the  sale  but 
afterwards  severed  from  the  premises  by  the  person  in  pos- 
session.'' 

Where,  however,  the  foreclosure  is  instituted  and  a  sale  is 
ordered  after  the  severance  of  the  crops,''*  or  where  a  stand- 
ing crop  is  fully  matured  at  the  time  of  the  sale,''^^  the  title 
thereto  will  not  pass,  under  such  proceedings,  to  the  mort- 
gagee or  the  purchaser.  The  purchaser  at  a  mortgage  fore- 
closure sale  will  be  entitled  to  the  crops  growing  at  the  time 
of  the  sale,  in  preference  to  a  person  claiming  under  the 
mortgagor  whose  claim  originated  subsequently  to  the  execu- 
tion of  the  mortgage.'^  And  it  has  been  held  that  a  person 
purchasing  the  premises  upon  the  foreclosure  of  a  mortgage 
is  entitled  to  the  growing  crops  in  preference  to  a  person  pur- 
See  Shepard  v.  Philbrick,  2  Den.  87  Am.  Dec.  90;  Codrington  v. 
(N.  Y.)  174;  Lane  v.  King,  8  Johnstone,  1  Beav.  520. 
Wend.    (N.   Y.)    584,  24  Am.   Dec.  i^  Richards   v.    Knight,   78   Iowa, 

105;    Jones  v.    Thomas,   8   Blackf.      69,   42   N.   W.   584,  4  L.R.A.   453; 
(Ind.)  428;  Ledyard  v.  Phillips,  47      Caldwell  v.  Alsop,  48  Kan.  571,  29 
Mich.   305;    Ruggles   v.    First   Nat.       Pac.  1150,  17  L.R.A.  782. 
Bank  of  Centrevillc,  43  Mich.  192;  ''^Shepard   v.    Philbrick,   2    Den. 

Howell  V.  Schenck,  24  N.  J.  L.  (4  (N.  Y.)  174;  Stewart  v.  Doughty, 
Zab.)  89;  Crews  v.  Pendleton,  1  9  Johns.  (N.  Y.)  112;  Whipple  v. 
Leigh  (Va.)  297,  19  Am.  Dec.  750.  Foot,  2  Johns.  (N.  Y.)  418,  3  Am. 
But  see  Aldrich  v.  Bank  of  Ohiowa,  Dec.  442;  Lane  v.  King,  8  Wend. 
64  Neb.  276,  57  L.R.A.  920,  97  Am.  (N.  Y.)  584,  24  Am.  Dec.  105; 
St.  Rep.  643,  89  N.  W.  772 ;  Co.y.ye//,  Anderson  v.  Strauss,  98  111.  485; 
as  rec'r,  etc.  v.  Ashley,  3  Neb.  Jones  v.  Thomas,  8  Blackf.  (Ind) 
(Unof.)  787,  92  N.  W.  1035.  428;  Howell  v.  Schenck,  24  N.  J. 

"^^  Ruggles  v.  First  Nat.  Bank  of      L.  (4  Zab.)  89;  Parker  v.  Storts,  15 
Centreville,  43  Mich.  192.  Ohio  St.  351;  Crews  v.  Pendleton, 

73  Woehler    v.    Endter,    46    Wis.       1    Leigh    (Va.)    297,    19   Am.    Dec. 
301.  750 ;  Wootton  v.  White,  90  Md.  64, 

7*  Buckout  V.  Swift,  27  Cal.  438,      78  Am.  St.  Rep.  425,  44  Atl.  1026. 


§  717]  DELIVERING  DEED.  1051 

chasing  the  same  premises  at  a  sale  subsequently  made  under 
a  decree  in  bankruptcy." 

But  when  the  crops  are  reserved  at  a  sale  by  special  an- 
nouncement, duly  authorized,  they  will  not  pass  to  the  pur- 
chaser.''^® This  rule  is  placed  upon  the  grounds,  that  while 
the  mortgagee  is  not  bound  to  sell  in  parcels,  unless  the  mort- 
gaged premises  are  described  in  parcels,'^  yet  that  he  may 
do  so  where  the  premises  are  so  situated  that  he  can  sell  in 
parcels;  that  he  may,  if  he  chooses,  even  release  a  portion  of 
the  premises  and  sell  the  balance ;  that  there  is  no  reason  why 
he  may  not  sell  the  same  portion  before  releasing  any;  and 
that  in  such  case  the  mortgage  is  a  lien  upon  the  whole  prem- 
ises, including  the  growing  crops,  and  at  the  time  of  the  sale 
the  mortgagee  may  announce  that  he  will  not  sell  the  growing 
crops,  but  will  sell  the  balance.*" 

But  the  sheriff,  or  other  officer  making  the  sale,  has  no 
authority  to  reserve  the  growing  crops,  and  where  he  makes 
such  a  reservation,  without  authority  contained  in  the  mort- 
gage or  in  the  decree  of  sale,  the  reservation  will  be  without 
effect  and  the  sale  will  pass  both  the  land  and  the  growing 
crops  to  the  purchaser;  and  in  those  cases  where  he  has  au- 
thority, such  reservation  will  probably  be  of  no  avail  unless 
it  is  expressed  in  his  deed.*^ 

Where  a  vendee  of  the  mortgagor  assumes  the  payment  of 
a  mortgage  on  the  lands,  he  occupies  the  position  of  a  mort- 
gagor in  possession,  and  the  growing  crops  planted  by  him 
while  in  possession  pass  to  the  purchaser  on  foreclosure  sale 
as  accessories  to  the  lands.'^  But  one  who  buys  a  fully 
matured  crop  standing  on  the  mortgaged  premises  and  un- 
harvested,  from  the  mortgagor  before  the  commencement  of 

''''Gillett  V.  Balcom,  6  Barb.   (N.  ^'^  Sherman  v.   Willett,  42   N.  Y. 

Y.)  370.  146. 

78  Sherman  v.    Willett,  42   N.   Y.  81  Howell  v.  Schenck,  24  N.  J.  L. 

146.  (4  Zab.)  89. 

'9  See    Griswold    v.    Fowler,    24  82  Hayden  v.  Burkemper,  101  Mo. 

Barb.  (N.  Y.)  135,  4  Abb.  (N.  Y.)  644,  20  Am.  St.  Rep.  643,  14  S.  W. 

Pr.   238;    Lamerson   v.    Marvin,   8  767,  aflf'g  40  Mo.  App.  346. 
Barb.   (N.  Y.)  9. 


1052 


MORTGAGE   FORECLOSURES. 


[§  718 


foreclosure  proceedings  but  after  default  on  the  mortgage, 
obtains  a  good  title  to  such  crop  as  against  the  receiver  ap- 
pointed in  such  foreclosure  proceedings,  or  the  purchaser  on 
sale  in  foreclosure.®^  It  has  been  held,  however,  that  one 
who  purchases  on  execution  sale  nursery  trees  and  bushes 
raised  for  sale  on  mortgaged  premises,  after  foreclosure  and 
sale  perfected  by  the  passing  of  the  deed,  cannot  take  them 
away  without  liability  to  the  mortgagee,  or  the  purchaser 
under  the  foreclosure  sale,  although  he  might  have  taken  them 
away  before  the  title  under  such  sale  was  perfected.** 

§  718.  Right  of  purchaser  to  rents. — The  mortgagor 
will  be  etnitled  to  the  possession  of  the  land  and  to  the  rents 
and  profits  thereof,  until  the  mortgagee  takes  possession  or 
institutes  proceedings  to  subject  the  rents  and  profits  to  his 
claim.®^    Upon  a  mortgage  foreclosure  sale  the  purchaser  does 


83  Caldwell  v.  Alsop,  48  Kan.  571, 
29  Pac.  1150,  17  L.R.A.  782. 

^^Battcrman  v.  Albright,  122  N. 
Y.  484,  25  N.  E.  856,  11  L.R.A.  800, 
19  Am.  St.  Rep.  510. 

85  Rudolph  V.  Herman,  4  S.  D.  283, 
56  N.  W.  901 ;  Grosvenor  v.  Bethel, 
93  Tenn.  577,  26  S.  W.  1019;  Butler 
V.  Page,  48  Mass.  (7  Mete.)  40,  42, 
39  Am.  Dec.  757.  See  Hele  v.  Bex- 
ley,  20  Beav.  127;  Higgins  v.  York 
Buildings  Co.  2  Atk.  107;  Drum- 
mond  V.  Duke  of  St.  Albans,  5  Ves. 
438;  Colman  v.  Duke  of  St.  Albans, 
3  Ves.  25.    See  ante,  §  681. 

In  Delaware  purchaser  entitled 
to  rents  accruing  after  day  of  sale 
on  the  foreclosure  of  mortgage, 
under  a  decree  of  the  United  States 
circuit  court;  the  Delaware  statute 
for  the  apportionment  of  rents  in 
the  case  of  sheriff's  sales  does  not 
apply.  Williams  v.  Cochran,  8 
Houst.  (Del.)  420,  31  Atl.  1050. 

In  South  Dakota  mortgagor  of 
property  sold  under  foreclosure  is 


entitled  to  the  rents  and  profits 
thereof  during  the  year  of  redemp- 
under  Dak.  Comp.  L.  §  5431,  pro- 
viding that  the  possession  of  the 
premises  sold  under  foreclosure 
shall  not  be  delivered  to  the  pur- 
chaser until  after  the  expiration  of 
one  year  from  the  sale.  Rudolph 
V.  Herman   (S.  D.)   56  N.  W.  901. 

A  purchaser  who  fails  to  record 
within  thirty  days  after  the  expi- 
ration of  the  equity  of  redemption, 
and  who  leaves  the  debtor  in  pos- 
session of  the  property,  cannot 
claim  the  crops  thereon  which  are 
attached  as  the  debtor's  property. 
Wolcott  V.  Hamilton,  61  Vt.  79,  17 
Atl.  39. 

The  purchaser  at  a  sale  of  real 
estate  under  a  trust  deed  is  not 
entitled  to  the  rents  accruing  on 
the  property  between  the  date  of 
his  purchase  and  his  acceptance  of 
a  deed  and  going  into  possession, 
where  he  paid  only  a  portion  of  the 


718] 


DELIVERING   DEED. 


1053 


not  acquire  the  title  to  the  premises  nor  a  right  to  the  posses- 
sion thereof,  until  the  deHvery  of  the  deed  by  the  officer  mak- 
ing the  sale;  until  that  time  the  owner  of  the  equity  of  re- 
demption will  be  entitled  to  the  possession  of  the  land  and 
to  its  rents  and  profits. ^^ 

The  purchaser  is  generally  not  entitled  to  possession,  nor 
to  the  rents  and  profits,  until  he  has  demanded  such  posses- 
sion under  his  deed.®''^  Where  a  person  is  in  possession  under 
a  purchase  at  a  former  foreclosure  sale  which  was  not  con- 
firmed, he  will  be  entitled  to  the  rents  only  from  the  date 
of  the  confirmation  of  the  report  of  the  last  sale.*^  A  pur- 
chaser, under  a  referee's  deed  conveying  the  premises  sub- 
ject to  "leases,  if  any,  tenancies  of  the  present  occupants," 
cannot  maintain  an  action  against  a  tenant  in  possession  who 
has  never  attorned  to  him.^^  A  mortgagee  who  purchases  the 
equity  of  redemption  on  the  foreclosure  sale  of  his  mortgage 
is  not  liable  to  a  junior  mortgagee  for  rents  and  profits.^" 

Until  such  time  as  the  deed  is  delivered  the  tenant  will  not 
be  affected  by  the  mortgage  foreclosure  proceedings.^^  But 
as  soon  as  the  title  passes  the  purchaser  is  entitled  to  the  rents 


purchase  money  down,  without  pay- 
ing any  interest  on  the  balance,  and 
his  delay  in  obtaining  possession 
was  his  own  fault.  Grosvenor  v. 
Bethel,  93  Tenn.  577,  26  S.  W.  1019. 
^^  Mitchell  V.  Bartlett,  51  N.  Y. 
447,  aff'g  52  Barb.  (N.  Y.)  319; 
Varniim  v.  Winslow,  106  Iowa,  287, 
76  N.  W.  708 ;  Condon  v.  Marlcy,  7 
Kan.  App.  383,  51  Pac.  924.  See 
Jackson  V.  King,  62  Kan.  850,  62 
Pac.  655.  See  also  Mutual  Life 
Ins.  Co.  V.  Blach,  4  Abb.  (N.  Y.) 
N.  C.  200;  Aster  v.  Turner,  11 
Paige  Ch.  (N.  Y.)  436,  43  Am. 
Dec.  766;  Clason  v.  Corley,  5  Sandf. 
(N.  Y.)  447;  Nichols  v.  Foster,  9 
N.  Y.  Week.  Dig.  468;  Taliaferro 
V.  Gay,  78  Ky.  496 


^"J  Mitchell  V.  Bartlett,  51  N.  Y. 
447,  aff'g  52  Barb.  (N.  Y.)  319; 
As  tor  V.  Turner,  11  Paige  Ch.  (N. 
Y.)  436,  43  Am.  Dec.  766;  Clason 
V.  Corley,  5  Sandf.  (N.  Y.)  447; 
Continental  Insurance  Co.  v.  Reeve, 
134  N.  Y.  Supp.  78. 

8'  Taliaferro  v.  Gay,  78  Ky.  496. 
See  Mitchell  v.  Bartlett,  51  N.  Y. 
447,  aff'g  52  Barb.  (N.  Y.)  319. 
See  ante,  §  681. 

89  Wacht  V.  Erskine,  61  Misc.  96, 
113  N.  Y.  Supp.  130. 

so  Gault  V.  Equitable  Trust  Co. 
100  Ky.  578,  38  S.  W.  1065. 

91  See  Richards  v.  Knight,  78 
Iowa,  69,  42  N.  W.  584,  4  L.R.A. 
453;  Whalen  v.  White,  25  N.  Y. 
462. 


1054 


MORTGAGE    FORECLOSURES. 


[§    719 


and  profits,  and  may  recover  the  rent  from  a  lessee  of  the 
mortgagor  as  the  same  falls  due  under  the  lease,  notwith- 
standing payment  thereof  by  the  leasee  to  the  mortgagor 
after  notice  of  the  rights  of  such  purchaser ;  '^  and  in  those 
cases  where  the  rents  have  been  paid  in  advance  to  a  receiver 
pendente  lite,  to  a  time  beyond  the  delivery  of  the  deed  upon 
the  sale  under  the  mortgage,  the  purchaser  is  entitled  to  all 
rents  from  the  time  the  deed  was  delivered.^^ 

There  are  few  general  rules  of  law  without  exceptions,  and 
there  is  an  exception  to  the  above  rule,  in  those  cases  where 
a  mortgagee  of  lands  purchases  them  at  his  own  foreclosure 
sale  for  the  full  amount  of  the  debts  and  costs.  In  such  a 
case  he  is  not  entitled  to  the  rents  and  profits  previously  col- 
lected and  in  the  hands  of  a  receiver  appointed  in  the  fore- 
closure proceedings,  nor  to  rents  paid  before  he  obtains  title 
by  deed.'* 

§  719.  Same — During  period  of  redemption. — Where 
the  rent  becomes  due  and  payable  between  the  day  of  sale  and 
the  time  when  the  purchaser  becomes  entitled  to  the  posses- 
sion, it  belongs  to  the  owner  of  the  equity  of  redemption,  and 
not  to  the  purchaser  at  the  sale.'^    And  this  is  true  although 


92  Dunton  v.  Sharpe,  70  Miss.  850, 
11  So.  168;  Cowen  v.  Arnold,  58 
Hun  (N.  Y.)  437,  12  N.  Y.  Supp. 
601,  35  N.  Y.  S.  R.  134;  Clement 
V.  Shipley,  2  N.  D.  430,  51  N.  W. 
414. 

He  is  entitled  to  rents  accruing 
under  a  lease  for  a  term  of  years,  as 
against  one  to  whom  the  mortgagor 
assigned,  after  the  execution  of  the 
mortgage,  rent  notes  given  before 
its  execution  for  the  rent  of  each 
year,  since  the  rents  pass  under 
the  mortgage  as  a  hereditament. 
Dunton  v.  Sharpe,  70  Miss.  850,  11 
So.  168. 

A  different  rule  prevails  in  Texas, 


where  a  mortgagor  can  by  leasing 
the  premises  and  assigning  his 
claim  for  rent,  sever  the  rent  from 
the  land,  so  that  a  sale  of  the  lat- 
ter will  not  convey  a  right  to  de- 
mand the  rent  subsequently  falling 
due  under  the  lease.  Security 
Mortg.  &  T.  Co.  v.  Gill,  8  Tex. 
Civ.  App.  358,  27  S.  W.  835. 

93  Cowen  v.  Arnold,  58  Hun  (N. 
Y.)  437,  35  N.  Y.  S.  R.  134,  12  N. 
Y.  Supp.  601. 

^'^  Pacific  Mut.  L.  Ins.  Co.  v.  Beck 
(Cal.)  35  Pac.  169. 

^^Eggleston  v.  Had  field,  90  111. 
App.  11;  Kaston  v.  Paxton,  46  Or. 
308,  114  Am.  St.  Rep.  871,  80  Pac. 


§  719] 


DELIVERING   DEED. 


1055 


the  owner  does  not  redeem.^®  In  some  states  however,  under 
statutory  provisions,  the  rents  and  profits  go  to  the  pur- 
chaser.^''' It  has  also  been  held,  under  statutory  provision, 
that  where  a  judgment  debtor  fails  to  redeem,  he  shall  be 
liable  to  the  purchaser  for  the  rent  of  the  premises,  or  for 
the  use  and  occupation  thereof,  from  the  date  of  the  sale.^' 
But  the  general  rule  seems  to  be  that  where  the  amount 
realized  on  the  sale  of  the  premises  is  sufficient  to  satisfy  the 
mortgage  debt,  the  owner  of  the  equity  of  redemption  is  en- 
titled to  the  possession  of  the  land  and  to  the  rents  and  profits 
accruing  therefrom,  as  against  the  purchaser.^^  And  this  is 
true  although  the  instrument  expressly  provides  that  the  rents 
and  profits  shall  belong  to  the  purchaser,^  since  the  rule  is 
held  to  be  one  of  public  policy,  the  benefit  of  which  cannot 
be  waived  by  the  parties  to  the  mortgage.^  The  contrary  rule 
prevails  however  where  the  land  sells  for  less  than  the  mort- 


209;  Bartlett,  as  trustee,  etc.  v.  Am- 
berg,  as  rec'r,  etc.  92  111.  App.  377; 
Traer  v.  Fowler,  144  Fed.  810,  75 
C.  C.  A.  540;  Astor  v.  Turner,  11 
Paige  Ch.  (N.  Y.)  436,  43  Am.  Dec. 
766.  See  Whalin  v.  White,  25  N. 
Y.  462;  Miner  v.  Beekman,  11  Abb. 
(N.  Y.)  Pr.  N.  S.  147,  42  How. 
(N.  Y.)  Pr.  33,  33  N.  Y.  Supr.  Ct. 
(1  J.  &  S.)  67;  Clason  v.  Corley, 
5  Sandf.  (N.  Y.)  447.  See  ante, 
§  681. 

^^  Dix  V.  Lohman,  105  Mo.  App. 
619,  80  S.  W.  51. 

s'Cal.  Code  Civ.  Proc.  §  707; 
Yndart  v.  Den,  125  Cal.  85,  57  Pac. 
761;  Walker  v.  McCusker,  71  Cal. 
594;  Wash.  Rem.  &  Bal.  Code  §  602, 
Merz  V.  Mehner,  67  Wash.  135,  120 
Pac.  893.  Rev.  Code  §  5549, 
Whithed  v.  5"^  Anthony  &  Dakota 
Elevator  Co.  9  N.  D.  224,  50  L.R.A. 
254,  81  Am.  St.  Rep.  562,  83  N.  W. 
238. 


98  Gale  V.  Parks,  58  Ind.  117.  See 
Clements  v.  Robinson,  54  Ind.  599. 

^^Haigh  v.  Carroll,  209  111.  576, 
71  N.  E.  317;  Cohn  v.  Franks,  96 
111.  App.  206 ;  World  Building,  Loan 
&  Investment  Co.  v.  Marlin,  151 
Ind.  630,  52  N.  E.  198;  Innes  v. 
Linscheid,  126  111.  App.  27;  Tosetti 
Brewing  Co.  v.  Goebel,  23  Ind.  App. 
99,  54  N.  E.  813.  See  Talcott  v. 
Peterson,  6Z  111.  App.  421 ;  Burleigh 
v.  Keck,  84  111.  App.  607.  But  see 
Equitable  Trust  Co.  v.  Wilson,  200 
111.  23,  65  N.  E.  430. 

1  Schaeppi  v.  Bartholomae,  217 
111.  105,  1  L.R.A.(N.S.)  1079,  75 
N.  E.  447 ;  Haigh  v.  Carroll,  209  111. 
576,  71  N.  E.  317.  See  Standish  v. 
Murgrove,  223  111.  500,  79  N.  E. 
161. 

z  Dennis  v.  Moses,  18  Wash.  537, 
40  L.R.A.  302,  52  Pac.  333. 


1056  MORTGAGE    FORECLOSURES.  [§    720 

gage  debt.^  However  after  the  deficiency  is  paid  off,  the  rents 
belong  to  the  owner  of  the  equity  of  redemption.* 

§  720.  Same — Accounting  for  rents  and  profits. — The 

purchaser  of  lands  on  execution  remaining  in  possession  of 
land  during  the  year  following  the  sale  of  property  under 
mortgage  foreclosure  is  liable  to  account  for  the  rent  to 
the  foreclosure  purchaser.^  But  in  those  cases  where  a  sale 
under  a  power  in  a  mortgage  is  completed,  and  the  mortgage 
extinguished,  the  acceptance  by  the  purchaser  of  a  formal  as- 
signment of  the  mortgage  will  not  cut  down  his  right  to  the 
rents  and  profits  which  had  become  absolute  as  against  the 
mortgagor ;  and  he  will  not  be  liable  to  an  action  by  the  mort- 
gagor for  the  sum  due  on  the  purchase.^  It  is  said  by  the 
supreme  court  of  Washington  '  that  under  the  statute  of  that 
state,®  providing  that  the  purchaser  from  the  day  of  sale 
until  a  redemption,  and  the  redemptioner  from  the  day  of 
redemption  until  another  redemption,  shall  be  entitled  to  the 
possession  of  the  property,  or  to  the  rents  or  value  of  the  use 
and  occupation  during  the  same  period,  if  in  possession  of  a 
tenant,  a  purchaser  at  a  sale  under  foreclosure  of  a  mortgage 
cannot  be  required  to  account  at  the  suit  of  the  mortgagor  to 
redeem,  for  rents  and  profits  arising  from  the  use  and  occu- 
pation of  the  premises  during  the  interval  between  the  sale 
and  redemption. 

It  is  thought  that  it  is  not  the  duty  of  a  purchaser  from 
the  mortgagee  under  a  power  of  sale  in  the  mortgage,  to  give 
notice  to  the  mortgagors  in  respect  to  the  liability  of  the  mort- 

8  Russell  V.  Bruce,  159  Ind.  553 ;  Had  field,  178  111.  532,  52  N.  E.  875. 

First  National  Bank  v.  Illinois  Steel  ^  Edwards   v.    Johnson,    105    Ind. 

Co.  174  III.  140,  51  N.  E.  200;  Roach  594,  5  N.  E.  716. 

V.  Glos,  181  111.  440,  54  N.  E.  1022.  e  Walpole  v.  Quirk,  143  Mass.  72, 

But  see  Ray  v.  Henderson,  210  111.  9  N.  E.  9. 

ZQS,7\^.^.S79;  Standishv.  Mus-  ^  Hardy    v.    Herriott,    11    Wash. 

grove,  223  111.  500,  79  N.  E.  161.  460,  39  Pac.  958. 

^Townsend    v.    Wilson,    155    111.  « 2  Hill's  Wash.  Code,  §  519. 
App.  303 ;  Stevens,  as  rec'r,  etc.  v. 


§  7211 


DELIVERING   DEED. 


1057 


gagee  to  account  to  them  for  the  rents  and  profits  from  the 
time  he  took  possession  under  an  abortive  sale  to  himself  until 
a  valid  exercise  of  the  power,  or  to  see  to  the  application  of 
the  purchase  money.' 

§  721.  Appeal  and  reversal — Effect  on  purchaser's 
title. — If  the  court  had  jurisdiction  of  the  parties  and  of 
the  subject  matter  of  the  action  and  power  to  render  a  judg- 
ment, it  will  not  be  a  valid  objection  to  the  title  by  the  pur- 
chaser at  the  sale  made  under  a  decree  of  foreclosure,  that 
such  judgment  was  erroneous;  ^^  his  title  will  not  be  affected 
by  any  defects  in  the  proceedings  which  render  the  judgment 
irregular,  and  in  consequence  of  which,  it  may  be  set  aside 
or  reversed.^^    But  where  a  sale  is  made  under  a  void  decree, 


^  Henderson  v.  Astwood,  P.  C. 
A.  C.  150. 

10  Deforest  v.  Farley,  62  N.  Y. 
628;  Storm  v.  Smith,  43  Miss.  497; 
Armstrong  v.  Humphreys,  5  S.  C. 
128. 

11  Brevoort  v.  Brevoort,  70  N.  Y. 
136,  140;  Deforest  v.  Farley,  62 
N.  Y.  628.  See  Clemens  v.  Clem- 
ens, Z7  N.  Y.  59,  72;  Packer  v. 
Rochester  &  S.  R.  R.  Co.  17  N.  Y. 
288;  Blakeley  v.  Calder,  15  N.  Y. 
617;  Brainard  v.  Cooper,  10  N.  Y. 
359;  H olden  v.  Sackett,  12  Abb.  (N. 
Y.)  Pr.  473;  McMurray  v.  McM ar- 
ray, 60  Barb.  (N.  Y.)  117,  127; 
Gaskin  v.  Anderson,  55  Barb.  (N. 
Y.)  259,  262,  7  Abb.  (N.  Y.)  Pr. 
N.  S.  1,  7;  Breese  v.  Bange,  2  E. 
D.  Smith  (N.  Y.)  474;  Wood  v. 
Jackson,  8  Wend.  (N.  Y.)  9,  22 
Am.  Dec.  603;  Estate  of  Fenn,  8 
N.  Y.  Civ.  Proc.  Rep.  206,  211; 
sub  nom.  Price  v.  Fenn,  3  Dem. 
(N.  Y.)  341.  See  also  Alvord  v. 
Beach,  5  Abb.  (N.  Y.)  Pr.  451; 
Silleck  V.  Heydrick,  2  Abb.  (N.  Y.) 
Pr.   N.   S.  57;   Hening  v.  Punnett, 

Mortg.  Vol.  IT.— 67. 


4  Daly  (N.  Y.)  543;  Graham  v 
Bleakie,  2  Daly  (N.  Y.)  55;  Jordan 
V.  VanEpps,  19  Hun  (N.  Y.)  533, 
Herbert  v.  Smith,  6  Lans.  (N.  Y.) 
493;  Minor  v.  Betts,  7  Paige  Ch 
(N.  Y.)  597;  Coit  v.  McRcynolds 
2  Robt.  (N.  Y.)  655;  Darvin  v, 
Hatfield,  4  Sandf.  (N.  Y.)  468;  In 
re  Luce,  17  N.  Y.  Week.  Dig.  35; 
Biickmaster  v.  Carlin,  4  111.  (3 
Scam.)  104;  Bustard  v.  Gates,  4 
Dana  (Ky.)  429;  Gossom  v.  Don- 
aldson, 18  B.  Mon.  (Ky.)  230,  68 
Am.  Dec.  723;  Benning field  v.  Reed, 
8  B.  Mon.  (Ky.)  105;  Lampton  v. 
Usher's  Heirs,  7  B.  Mon.  (Ky.) 
Wiltse  Mortg— 2-8-13— Fred 
57 ;  Gray  v.  Brignardcllo,  68  U.  S. 
(1  Wall.)  627,  17  L.  ed.  693; 
Bank  of  U.  S.  v.  Voorhees,  1  McL. 
C.  C.  221 ;  Chamblee  v.  Broughton, 
120  N.  C.  170,  27  S.  E.  111.  See 
also  Schieck  v.  Donahue,  81  App. 
Div.  168.  80  N.  Y.  Supp.  739;  Hu- 
biugcr  v.  Coitral  Trust  Co.  of  Nezv 
York.  94  Fed.  788,  36  C.  C.  A.  494; 
McGregor  v.  Eastern  Building  &■ 
Loan  Assc.  5  Neb.  (Unof.)  563,  99 


1058 


MORTGAGE    FORECLOSURES. 


[§  721 


the  purchaser  will  obtain  no  title. ^'^  The  rule  that  a  purchaser 
acquires  a  valid  title,  although  the  decree  may  be  reversed  on 
appeal,  does  not  apply  to  an  interlocutory  decree  nor  to  a 
conditional  order,  even  if  the  conditions  have  not  been  ful- 
filled ; "  nor  does  it  apply  where  the  party  purchases  on  be- 
half of  the  judgment  creditors.^* 

The  rule  that  a  bona  fide  purchaser  at  a  foreclosure  sale 
will  receive  a  good  title,  although  the  proceedings  were  erro- 
neous or  irregular,  holds  good  where  the  purchaser  was  a 
party  to  the  suit,^^  even  though  such  purchaser  had  notice 
at  the  time  of  the  sale,  that  an  effort  would  be  made  to  reverse 
the  decree,"  and  though  an  appeal  had  been  taken  from  the 
judgment  at  the  time  of  the  sale,  on  which  the  judgment 
was  subsequently  reversed,  a  stay  of  proceedings  not  having 
been  obtained  pending  such  appeal." 

It  has  been  held  that  where  a  person,  not  a  party  to  the 
suit,  is  a  purchaser  at  a  foreclosure  sale,  the  law  does  not 


N.  W.  509.  But  see  Woodard  v. 
Bird,  105  Tenn.  671,  59  S.  W.  143. 

^2  Gossotn  V.  Donaldson,  18  B. 
Mon.  (Ky.)  230,  68  Am.  Dec.  723; 
Storm  V.  Smith,  43  Miss.  497. 

^3  Gray  v.  Brignardello,  68  U.  S. 
(1  Wall.)  627,  17  L.  ed.  693. 

1*  Shelden  v.  Pruessner,  52  Kan. 
593,  35  Pac.  204. 

Thus,  the  supreme  court  of  Cali- 
fornia, in  the  case  of  Withers  v. 
Jacks  (79  Cal.  297,  12  Am.  St.  Rep. 
143,  21  Pac.  824),  say  that  in  a  con- 
test between  foreclosing  mortgag- 
as  to  priority,  where  the  one  de- 
feated takes  an  appeal  without  ask- 
ing for  or  receiving  a  stay  of  pro- 
ceedings, while  the  other  mortgage 
is  being  foreclosed;  and  the  judg- 
ment is  reversed  because  of  defects 
in  the  findings,  and  it  is  adjudged 
that  the  appeal  does  not  affect  the 
mortgagor  in  any  manner ;  the  fore- 
closure  of   the   mortgage  which   is 


given  priority  by  the  judgment  is 
final,  and  a  purchaser  thereunder 
holds  a  good  title  as  against  any 
prior  proceeding  by  the  other  mort- 
gagee. 

A  purchaser  for  judgment  cred- 
itors is  not  entitled  to  the  protection 
of  Kansas  Civil  Code,  §  467;  pro- 
viding that  the  reversal  of  a  judg- 
ment will  not  affect  the  title  of  a 
bona  fide  purchaser  of  land  sold 
thereunder.  Sheldon  v.  Pruessner, 
52  Kan.  593,  35  Pac.  204. 

^^Hening  v.  Punnett,  4  Daly  (N. 
Y.)  543;  Splahn  v.  Gillespie,  48 
Ind.  397;  Gossom  v.  Donaldson,  18 
B.  Mon.  (Ky.)  230,  54  Am.  Dec. 
547. 

"  Irwin  V.  Jeffers,  3  Ohio  St.  389. 

^"^ Hening  v.  Punnett,  4  Daly  (N. 
Y.)  543.  See  Ebert,  as  ex'r,  etc.  v. 
Hanneman,  69  Misc.  223,  125  N.  Y. 
Supp.  237. 


§    722']  DELIVERING   DEED.  1059 

require  him  to  inspect  the  record  and  to  see  that  it  is  free 
from  errors ;  "  he  is  only  required  to  ascertain  that  the  court 
had  jurisdiction,  and  that  there  is  such  a  judgment  or  decree 
unreversed  as  would  authorize  the  sale.  The  supreme  court 
of  Illinois  said  in  the  case  of  Fergus  v.  Woodworth,^^  that 
"if  such  were  not  the  rule,  no  one  would  become  a  purchaser 
at  a  judicial  sale,  and  all  competition  would  cease,  and  the 
plaintiffs  would  become  the  purchasers  at  their  own  price. 
Stability  and  confidence  must  be  given  to  judicial  sales  to  the 
fullest  extent  compatible  with  the  interests  of  the  parties,  as 
well  the  purchaser  as  the  defendant." 

And  it  has  been  stated  that  a  purchaser  of  property  from 
a  party  to  whom  a  deed  under  a  foreclosure  sale  has  regularly 
issued,  is  not  affected  by  the  revocation  of  the  order  confirm- 
ing the  sale,  under  proceedings  commenced  after  he  had  ac- 
quired his  title,  although  the  order  of  revocation  was  made 
at  the  same  term  of  court  as  the  order  of  confirmation.^" 

§  722.  Delivering  possession  of  premises  to  purchas- 
er.— A  court  of  equity  has  authority  to  decree  the  posses- 
sion of  land,  where  a  controversy  regarding  the  title  thereto 
has  been  properly  brought  within  its  jurisdiction,  ^^  and  the 
law  will  enforce  its  decree  by  its  officers  for  the  delivery  of 
actual  possession,  whenever  in  pursuance  of  the  decree  such 
possession  ought  to  be  delivered. ^^  The  power  of  a  court  to 
give  possession  to  the  purchaser  at  a  foreclosure  sale  was  at 
one  time  doubted,  but  it  was  finally  exercised  by  the  court  of 
chancery.^' 

18  See  Walter  v.  Bnigger,  78  S.  35,  I.  O.  O.  F.  v.  Evans,  176  Mo. 
W.  419.  310,  75  S.  W.  914. 

19  44  III.  374,  384.  22  Valentine  v.  Teller,  Hopk.  Ch. 
^^Hollister  v.  Mann,  40  Neb.  572,       (N.  Y.)  422. 

58  N.  W.  1126.  23  See  Bolles  v.  Duff,  43   N.   Y. 

21  Kershaw  v.  Thompson,  4  Johns.  469,  473,  41  How.  (N.  Y.)  Pr.  358; 

Ch.  (N.  Y.)  609;  Irvine  v.  McRee,  Kershaw  v.  Thompson,  4  Johns.  Ch. 

5    Humph.    (Tenn.)    556,    49    Am.  (N.  Y.)   609;   Thompson  v.  Camp 

Dec.  468,  4   Kent   Com.   184.     See  bell,  57  Ala.  188. 
State  ex  rel.  Wyandotte  Lodge,  No. 


1060  MORTGAGE    FORECLOSURES.  [§    722 

The  New  York  court  of  appeals  held,  in  the  case  of  BoUes 
V.  Duff,'^^  that  by  statute  the  court  was  given  power  over  the 
whole  subject,  though  the  act  was  in  a  good  degree  declara- 
tory. It  has  been  said  that  a  court  of  equity  would  fall  short 
of  doing  complete  justice,  unless  it  placed  the  purchaser  at 
a  mortgage  foreclosure  sale  in  possession,  as  well  as  gave 
him  a  deed  of  the  premises.  Where  the  person  ejected  from 
the  possession  of  the  premises  was  a  party  to  the  suit,  or  came 
into  possession  under  a  party  to  the  suit  pendente  lite,  he  can 
make  no  objection  to  such  an  order.^^ 

It  may  now  be  regarded  as  well  settled  that  courts  of  equity, 
in  the  exercise  of  their  ordinary  and  general  chancery  juris- 
diction, where  the  possession  of  real  property  is  involved, 
may,  upon  the  consummation  of  a  suit  to  enforce  a  lien  there- 
on, do  complete  justice  by  putting  a  successful  complainant 
into  possession,  if  all  the  persons  in  interest  were  made  par- 
ties to  the  suit;  and  that,  on  a  sale  in  proceedings  to  fore- 
close a  mortgage,  or  to  enforce  a  lien,  the  court  may  extend 
the  same  relief  to  a  purchaser  under  the  decree  of  sale.^^  And 
the  right  of  a  purchaser  to  bring  an  action  for  the  possession 
of  the  property  sold  is  not  effected  by  a  delay  of  several 
years.^'  Where  the  statute  provides  that  the  purchaser  shall 
have  possession  of  the  property  from  the  date  of  purchase 
until  resale  or  redemption,  unless  it  is  in  the  possession  of  a 
tenant,^^  this  right  will  be  enforced  by  the  court.^^ 

However,  if  a  person,  pending  the  suit,  enters  into  posses- 
sion under  one  who  did  not  derive  his  title  to  the  premises 
from  a  party  to  the  action,  he  cannot  be  turned  out  of  posses- 
sion under  the  decree.     So  in  the  case  of  a  foreclosure  sale, 

2443  N.  Y.  469,  473.  ^i  Pere   Marquette   R.   R.    Co.   v. 

26  See   Kershaw  v.    Thompson,  4  Graham,   136  Mich.  444,  99  N.  W. 

Johns.   Ch.    (N.  Y.)    609;  Jones  v.  408.    See  Prahl  v.  Rogers,  127  Wis. 

Hooper,  50  Miss.  514.    See  Creigh-  353,  106  N.  W.  287. 

ton  V.  Paine,  2  Ala.   159.  ^8  As  does  Was.  Code  Civ.  Proc. 

^^  Harding  v.   LeMoyne,    114   III.  §  519. 

65;  Stittles  v.  Sewell,  105  Ga.   129,  ^^  Debenture  Corp.  v.  Warren,    9 

31  S.  E.  41.  Wash.  312,  37  Pac.  451. 


§  723]  DELIVERING  DEED.  1061 

if  a  person  in  possession  shows  a  prima  facie  right  thereto 
paramount  to  the  mortgage,  the  court  will  not  attempt  to 
decide  questions  affecting  his  legal  title,  and  the  possession 
must  then  be  sought  by  proceedings  at  law.^°  It  has  been  held 
in  Wisconsin,^^  that  the  statutory  provision  requiring  that  the 
purchaser  at  a  foreclosure  sale  be  let  into  possession  on  pro- 
duction of  the  sheriff's  deed,  must  be  construed  as  defining 
the  rights  of  such  purchaser  after  the  confirmation  of  the 
sale.^'^  It  seems  that  in  some  states  a  purchaser  at  a  fore- 
closure cannot  demand  possession  until  the  report  of  the 
officer  making  the  sale  has  been  confirmed  by  the  court.^^  The 
rule  is  different,  however,  in  New  York,^*  and  in  Wash- 
ington 


35 


§  723.  Possession  obtained  by  summary  process. — It 
is  usually  provided  in  every  judgment  of  foreclosure  and  sale, 
that  the  purchaser  be  let  into  possession  on  production  of  the 
deed  of  the  officer  making  the  sale;  whether  this  provision  is 
inserted  in  the  judgment  or  not,  the  purchaser  will  be  entitled 
to  possession  on  compliance  with  the  terms  of  the  sale,  and 
the  court  will  have  power  to  put  him  in  such  possession.^® 
The  purchaser  will  not  be  driven  to  an  action  at  law  to  obtain 

^Harding  v.  LeMoyne,   114  111.  (N.  Y.)   422;    Yates  v.  Hambly,  2 

65.  Atk.  360. 

31  Wis.  Rev.  Stat.  3169.  The  supreme  court  of  Florida,  in 

32  Welp  V.  Gunther,  48  Wis.  543 ;  the  case  of  McLane  v.  Piaggie  (24 
Waehler  v.  Endter,  46  Wis.  301.  Fla.  71,  3  So.  823),  say  that  a  pur- 

^^  Howard  v.  Bond,  42  Mich.  131.  chaser  at  a  foreclosure  sale  should, 

3*  See  ante,  §  659.  upon  demanding  possession  of  the 

35  State  ex.  rel.  Steele  as  rec'r.  property  purchased,  exhibit  to  the 
etc.  V.  Nortlnvestern  &  Pacific  party  in  possession  the  master's 
Hypotheek  Bank,  18  Wash.  118,  50  deed;  and  a  vendee  of  the  pur- 
Pac.  1023.  chaser    should    exhibit    both     such 

36  Ludlow  V.  Lansing,  Hopk.  Ch.  deed  and  that  from  the  purchaser 
(N.  Y.)  231;  Dyer  v.  Kopper,  59  to  him,  if  he  intends  to  apply  for  a 
Vt.  477,  59  Am.  Rep.  742,  9  Atl.  4,  writ  of  assistance  against  such 
See  Valentine  v.  Teller,  Hopk.  Ch.  party. 


1062  MORTGAGE    FORECLOSURES.  [§    723 

possession."  The  authority  of  the  court  to  issue  a  process 
and  to  place  the  purchaser  in  possession,  is  placed  upon  the 
ground  that  it  has  power  to  enforce  its  own  decrees  and  thus 
to  avoid  the  circuity  of  vexatious  litigation.®^ 

But  where  a  party  in  possession  was  not  a  party  to  the 
foreclosure,  and  did  not  acquire  his  possession  from  a  person 
who  was  bound  by  the  decree,  but  who  is  a  mere  stranger 
and  who  entered  into  possession  before  the  suit  was  begun, 
the  court  will  have  no  power  either  under  the  statute  or  in- 
dependently of  it  to  deprive  him  of  possession  by  enforcing 
the  decree.®^  A  person  obtaining  possession  by  a  legal  pro- 
ceeding under  a  claim  of  right,  will  not  be  summarily  dispos- 
sessed by  an  enforcement  of  the  decree  of  foreclosure  adverse 
to  a  party  to  the  suit,  the  proceedings  having  been  commenced 
prior  to  the  filing  of  the  bill  of  foreclosure,  and  he  not  being 
a  party  to  the  foreclosure.*" 

And  a  tenant  in  possession,  who  became  such  after  the 
commencement  of  the  suit,  where  he  holds  under  a  person 
not  a  party  to  the  suit,  who  was  lawfully  in  possession  under 
a  claim  hostile  to  that  derived  under  the  mortgage,  will  not  be 
dispossessed,  although  made  a  party  to  the  suit  for  the  pur- 
pose of  barring  an  interest  held  by  his  wife  in  other  premises 
covered  by  the  mortgage,  of  which  he  was  in  possession  and 
which  he  had  delivered  up  in  pursuance  of  the  decree.*^     But 

! 

^''Ludlow  V.  Lansing,  Hopk.  Ch.       over,  13  N.  J.  Eq.   (2  Beas.)   220, 

(N.  Y.)   231;  Kershaw  v.  Thomp-  78  Am.  Dec.  95. 

son,  4  Johns.  Ch.  (N.  Y.)  609.    See  ^^  Ludlow  v.  Lansing,  Hopk.  Ch. 

VanHook  v.  Throckmorton, ^Vaigt  231;  Jones  v.  Hooper,  50  Miss.  514. 

Ch.   (N.  Y.)  33;    Frelinghuysen   v.  ^^  Meiggs  v.  Willis,  8  N.  Y.  Civ. 

Colden,  4  Paige  Ch.   (N.  Y.)  204;  Proc.  125;  Boynton  v.  Jackway,  10 

Suffern  V.Johnson,  1  Paige  Ch.  (N.  Paige  Ch.   (N.  Y.)  307;   VanHook 

Y.)  450,  19  Am.  Dec.  440;  McGown  v.  Throckmorton,  8  Paige  Ch.   (N. 

V.    Wilkins,   1    Paige    Ch.    (N.   Y.)  Y.)  33;  Frelinghuysen  v.  Colden,  4 

120;  Creightonv.  Paine,2  Ala.  158;  Paige  Ch.   (N.  Y.)  204;  Kessinger 

Bright  v.  Pennywhit,  21  Ark.  130;  v.  Whittaker,  82  111.  22;  Benhard  v. 

Horn  V.  Volcano  Water  Works,  18  Darrow,  Walk.  Ch.   (Mich.)  519. 

Cal.     141 ;    Skinner    v.    Beatty,    16  ^  Frelinghuysen     v.     Colden,     4 

Cal.    156;    Trabue   v.    Ingles,   6    B  Paige  Ch.   (N.  Y.)  204. 

Mon.    (Ky.)    82;   Schenck  v.   Con-  ^^  New  York  Life  Ins.  &  Trust 


§  725]  DELIVERING  DEED.  1063 

where  a  person  comes  into  possession  pendente  lite  through 
a  party  to  the  suit,  he  will  be  bound  by  the  decree  in  the  same 
manner  as  the  party  whom  he  succeeds.*^ 

§  724.  Provisions  of  Code  for  obtaining  possession. — 

It  is  provided  by  the  New  York  Code  of  Civil  Procedure,*^ 
that  where  a  judgment  in  an  action  relating  to  real  property, 
allots  to  any  person  a  distinct  parcel  of  land,  or  contains  a 
direction  for  the  sale  of  real  property,  or  confirms  such  an 
allotment  or  sale,  it  may  also,  except  in  a  case  where  it  is 
expressly  prescribed  that  the  judgment  may  be  enforced  by 
execution,  direct  the  delivery  of  the  possession  of  the  prop- 
erty to  the  person  entitled  thereto.  If  a  party  or  his  represen- 
tative, or  successor,  who  is  bound  by  the  judgment,  withholds 
possession  from  a  person  thus  declared  to  be  entitled  thereto, 
the  court,  besides  punishing  the  disobedience  as  a  contempt, 
may,  in  its  discretion,  by  order,  require  the  sheriff  to  put 
that  person  into  possession.  Such  an  order  must  be  executed, 
as  if  it  were  an  execution  for  the  delivery  of  the  possession 
of  the  property. 

§  725.  Writ  of  assistance — When  granted. — It  was  held 
in  the  recent  case  of  Dyer  v.  Kopper,**  that  the  execution  of 
a  decree  of  foreclosure  giving  possession,  can  be  made  by  a 
summary  process.  A  writ  of  assistance  is  an  appropriate 
process  to  issue  from  a  court  of  equity,  to  place  a  purchaser 
of  mortgaged  premises  in  possession  under  its  decree  of  sale, 
after  he  has  received  the  deed  of  the  officer  making  the  sale, 
as  against  parties  who  are  bound  by  the  decree,  and  who  re- 
fuse to  surrender  possession  pursuant  to  the  directions  of 
the  court.*^ 

Co.  V.  Cutler,  9  How.  (N.  Y.)  Pr.  742,  9  Atl.  4.    See  Ludlow  v.  Lan- 

407.  sing,  Hopk.  Ch.  (N.  Y.)  231. 

^  Kessinger  v.  Whittaker,  82  111.  ^5  Kershaiv  v.  Thompson,  4  Johns. 

22.  Ch.  (N.  Y.)  609;  Terrell  v.  Allison, 

43  §  1675.  88  U.  S.   (21  Wall.)  291,  22  L.  ed. 

**59  Vt.  477,  489,   59  Am.   Rep.  635;    Watkins  v.  Jerman,    36    Kan. 


1064 


MORTGAGE    FORECLOSURES. 


[§  725 


After  a  purchaser  has  complied  with  the  terms  of  the  sale,*® 
and  has  obtained  his  deed  from  the  officer  making  the  sale,*''' 
if  the  possession  is  wrongfully  withheld  from  him  in  disobe- 
dience of  the  decree  of  the  court,  he  will  be  entitled  to  a  writ 
of  assistance,  on  proof  that  he  has  exhibited  his  deed  to  the 
person  in  possession  and  demanded  the  possession  of  the 
premises.**  Some  of  the  cases  hold  that  a  notice  of  the  appli- 
cation for  a  writ  of  assistance  should  first  be  given  to  the 
defendant  and  also  to  the  tenant  of  the  premises,  if  there  is 
one.*®  But  it  would  seem,  according  to  the  current  of  author- 
ities, that  a  notice  of  the  application  is  unnecessary.^"  Mere 
delay  in  applying  for  a  writ  is  not  sufficient  to  warrant  deny- 
ing the  use  of  the  remedy."  And  it  will  be  granted  even  after 
the  time  for  redemption  has  expired.*^ 

But  a  writ  of  assistance  can  only  issue  against  parties  to 
the  suit,  or  persons  coming  into  possession  under  the  defend- 


464,  13  Pac.  798;  Hilbernia  Sav- 
ings &  Loan  Soc.  v.  Lewis,  117  Cal. 
577,  47  Pac.  602,  49  Pac.  714;  Mar- 
grunder  v.  Kittle  as  adm'x,  etc.  2 
Neb.  (Unof.)  418,  89  N.  W.  272; 
Harding  v.  Marker,  17  Idaho,  341, 
134  Am.  St.  Rep.  259,  105  Pac.  788. 
See  Emerick  v.  Miller,  159  Ind.  317, 
64  N.  E.  28. 

^^  Batters  hall  v.  Davis,  23  How. 
(N.  Y.)  Pr.  383;  Armstrong  v. 
Humphries,  5  S.  C.  128. 

^T  Bennett  v.  Matson,  41  111.  332. 
See  Howard  v.  Bond,  42  Mich.  131. 

48  Kershaw  v.  Thompson,  4  Johns. 
Ch.  (N.  Y.)  609;  VanHook  v. 
Throckmorton,  8  Paige  Ch.  (N.  Y  ) 
33;  Frelinghuysen  v.  C  olden,  4 
Paige  Ch.  (N.  Y.)  204;  Mont- 
gomery V.  Tvutt,  11  Cal.  190;  O' Brian 
V.  Fry,  82  111.  87;  Kessinger  v. 
IVhittaker,  82  111.  22;  Oglesby  v. 
Pearce,  68  111.  220;  Aldrich  v. 
Sharp,  4  111.   (3  Scam.)  261;  Wat- 


kins  V.  Jerman,  36  Kan.  464; 
Wcehler  v.  Endter,  46  Wis.  301. 

^^  Devaucene  v.  Devaucene,  1 
Edw.  Ch.  (N.  Y.)  272;  Ray  v. 
Trice  as  rec'r  etc.  49  Fla.  375,  38 
So.  367;  Higgins  v.  Peterson,  64 
111.  App.  256.    See  post,  §  726. 

In  Wisconsin  it  is  left  to  the  dis- 
cretion of  the  court.  Prahl  v. 
Rogers,  127  Wis.  353,  106  N.  W. 
287. 

50  Valentine  v.  Teller,  Hopk.  Ch. 
(N.  Y.)  422;  Lynde  v.  O'Dvnnell, 
21  How.  (N.  Y.)  Pr.  39,  12  Abb. 
(N.  Y.)  Pr.  291;  New  York  Life 
Ins.  &  Trust  Co.  v.  Rand,  8  How. 
(N.  Y.)  Pr.  35,  352;  Kershaw  v. 
Thompson,  4  Johns.  Ch.  (N.  Y.) 
609 ;  Dove  v.  Dove,  1  Bro.  Ch.  376, 
2  Dick.  617 ;  Hugttenin  v.  Baseley, 
15  Ves.  180. 

51  Prahl  V.  Rogers,  127  Wis.  353, 
106  N.  W.  287. 

62  Taylor  v.  Ellenberger,  134  Cal. 
31,  66  Pac.  4. 


§  726]  DELIVERING  DEED.  1065 

ant  after  its  commencement,^^  The  supreme  court  of  Illinois, 
in  the  case  of  Cochran  v.  Folger,^*  say  that  a  decision  by  a 
justice,  in  forcible  detainer,  in  favor  of  the  mortgagor,  after 
a  decree  of  sale,  but  without  demand  for  possession  or  pro- 
duction of  the  master's  deed,  is  not  a  bar  to  a  writ  of  assistance 
to  the  purchaser  on  foreclosure. 

§  726.  Writ  of  assistance — How  obtained. — Where  the 
original  decree  of  foreclosure  does  not  contain  an  order  for 
the  surrender  of  the  premises  to  the  purchaser,  a  writ  of 
assistance  cannot  be  granted  until  such  an  order  for  the 
possession  of  the  premises  has  been  obtained  upon  notice 
to  the  party  occupying  the  property  after  a  demand  for  the 
possession.^^  A  proceeding  by  a  purchaser  at  a  foreclosure 
sale  to  obtain  a  writ  of  assistance  by  motion,  is  not  the  insti- 
tution of  a  new  suit,  but  is  only  a  supplementary  step  in  the 
action  for  foreclosure.^^  Recourse  to  an  action  at  law  to  ob- 
tain possession  will  not,  however,  be  precluded  thereby ; " 
both  remedies  may  be  pursued  at  the  same  time  without 
mutual  interference,  until  possession  is  obtained. ^^ 

A  purchaser  under  a  decree  of  foreclosure  will  not  be 
entitled  to  a  writ  of  assistance  to  turn  the  occupant  of  the 
premises  out  of  possession,  even  though  such  person  went 
into  possession  pendente  lite,  unless  he  did  so  under  'and  by 
permission  of  some  party  to  the  action,^^  for  a  writ  of  assis- 
tance will  be  proper  only  where  a  party  who  is  bound  by  the 

^^Pidcock  V.  Melick   (N.  J.  Ch.)  ^^  Kessinger  v.   Whittaker,  82  111. 

4  Atl.  98.  22. 

5*116  111.  194,  5  N.  E.  383.  ^^  Dickey  v.  Gibson,  121  Cal.  276, 

55  Lynde  v.   O'Donnell,    12    Abb.  53  Pac.  704. 

(N.  Y.)  Pr.  286,  21  How.  (N.  Y.)  ^^  Kessinger    v.     Whittaker,     82 

Pr.  34;  A^.  Y.  Life  Ins.  &  Trust  Co.  111.  22;  Haynes  v.  Meek,  14  Iowa, 

V.  Rand,  8  How.    (N.  Y.)    Pr.  35,  320. 

352.     See  Kessinger  v.    Whittaker,  59  Boynton  v.  Jackway,   10  Paige 

82  111  22;  Ballingcr  V.  Waller,  9  B.  Ch.     (N.    Y.)     307;     VanHook    v. 

Mon.    (Ky.)   67;  Benhard    v.    Dar-  Throckmorton,   8    Paige     Ch.     (N. 

row.  Walk.  Ch.   (Mich.)  519.  Y.)    ZZ.     See  Ludlow    v.    Lansing, 


1066  MORTGAGE   FORECLOSURES.  [§    726 

decree  of  foreclosure,  refuses  to  give  up  possession  on  re- 
quest; and  it  should  not  be  granted  without  proper  proof  of 
such  refusal,  after  the  right  of  possession  has  been  estab- 
lished.«° 

Where  a  tenant  is  in  possession,  the  deed  executed  by  the 
officer  making  the  sale  should  be  exhibited  to  him  by  the 
purchaser,  when  he  makes  a  demand  for  possession,  and  in 
case  of  his  refusal  to  give  possession,  no  notice  of  the  appli- 
cation to  the  court  for  a  writ  of  assistance  need  be  given. ^^ 
If  a  person  in  possession  is  not  a  party  to  the  suit,  but  has 
come  into  possession  of  the  mortgaged  premises  since  the 
action  was  commenced,  a  writ  of  assistance  will  not  be  granted 
on  refusal  to  deliver  possession  to  the  purchaser  on  produc- 
tion of  the  referee's  deed,  unless  notice  of  the  application  for 
such  a  writ  has  been  served  upon  him.^^  But  as  against  a 
person  who  was  a  party  to  the  suit,  a  writ  of  assistance  may 
issue  ex  parte.^^  It  seems,  however,  that  one  who  has  come 
into  possession  pendente  lite  will  be  entitled  to  a  notice  of  the 
motion.^* 

In  all  cases  of  resistance  by  the  occupants,  the  proper 
method  of  putting  the  purchaser  into  possession  is  by  means 
of  a  writ  of  assistance;  it  may  be  issued  upon  proof  of  the 
service  of  the  order  to  deliver  possession  and  of  a  refusal  to 
comply  with  such  order.^* 

Hopk.  Ch.  (N.  Y.)  231;  Thompson  ^^Benhard  v.  Darrow,  Walk.  Ch. 

V.  Campbell,  57  Ala.  189;  McChord  (Mich.)     519;     Commonwealth    v. 

V.  McClintock,  5  Litt.   (Ky.)  304.  Ragsdale,  2  Hen.  &  Mun.   (Va.)  8. 

^^  Howard  v.  Bond,  42  Mich.  131.  But    see    Lynde    v.    O'Donnell,    12 

61  AT.  Y.  Life  Ins.  &  Trust  Co.  v.  Abb.  (N.  Y.)  Pr.  286,  21  How.  (N. 

Rand,  8  How.  (N.  Y.)   Pr.  35,  352.  Y.)   Pr.  34. 

But  see  Fackler  v.  Worth,  13  N.  J.  65  Valentine  v.  Teller,  Hopk.  Ch. 

Eq.  (2  Beas.)  395.  422;  Bollinger  v.  Waller,  9  B.  Men. 

^^Benhard  v.  Darrow,  Walk.  Ch.  (Ky.)   67;  Hart  v.  Lindsay,  Walk. 

(Mich.)    519.  Ch.   (Mich.)   144;  Schenck  v.  Con- 

63  N.  Y.  Life  Ins.  &  Trust  Co.  v.  over,  13  N.  J.  Eq.  (2  Beas.)  220,  78 

Cutler,  9  How.  (N.  Y.  )Pr.  407,  N.  Am.  Dec.  95. 
Y.  Life  Ins.  &  Trust  Co.  v.  Rand, 
8  How.  (N.  Y.)  Pr.  35,  352. 


§  727'\  DELIVERING  DEED.  1067 

§  727.  Against  whom  possession  delivered. — Under  a 
decree  of  foreclosure  of  mortgaged  premises  the  court  will 
award  a  writ  of  assistance  and  give  possession  to  the  pur- 
chaser, as  against  all  persons  who  were  parties  to  the  suit 
or  who  came  into  possession  under  any  of  them  while  the 
suit  was  pending.^^  But  the  court  will  not  undertake  to  re- 
move persons  who  went  into  possession  after  the  purchaser 
had  received  his  deed  and  conveyed  the  premises  to  another.*' 
A  person  who  enters  into  possession  fifteen  months  after  the 
sale  cannot  be  regarded  as  having  entered  pending  the  suit.*' 

Possession  may  be  given  to  a  purchaser  as  against  a  person 
who  was  not  a  party  to  the  suit,  if  he  took  possession  after 
the  commencement  of  the  action  in  collusion  with  the  mort- 
gagor, though  under  a  claim  of  tax  title;  *^  but  the  court  will 
not  grant  a  writ  of  assistance  as  against  a  person  who  entered 
pending  the  suit  under  an  adverse  claim  of  title  and  without 
the  consent  or  collusion  of  the  mortgagor.'"  And  a  party 
who  enters  pending  the  suit  will  not  be  turned  out  of  posses- 
sion under  the  decree  of  foreclosure,  if  he  did  not  enter  under 
a  party  to  the  suit  or  under  some  one  who  derived  title  to 
the  premises  from,  or  had  gone  into  possession  with  the  per- 
mission of,  a  party  to  the  action.'^ 

The  ordinary  rule  in  regard  to  the  execution  of  a  writ  of 
assistance  for  possession  is,  that  the  purchaser  must  be  put 
in  full  and  complete  possession;  that  the  possession  to  be 
given  by  a  sheriff  is  a  full  and  actual  possession;  and  that 
where  the  purchaser   is  put   into  possession   under  circum- 

66  S^//  V.  Birdsall,  19  How.   (N.  685^//  y.  Birdsall,  19  How.    (N. 

Y.)     Pr.    491,    sub    nom.    Belts    v-  Y.)     Pr.    491,    sub    nom.    Betts    v. 

Birdsall,  11  Abb.  (N.  Y.)   Pr.  222;  Birdsall,  11  Abb.   (N.  Y.)   Pr.  222. 

Kessinger  v.    Whitaker,  82  111.  22;  ^^  Brown    v.     Marzyck,     19    Fla. 

Strong  v.  Smith,  68  N.  J.  Eq.  686,  840. 

63    Atl.    493.      See    Finger   v.    Mc-  '0  VanHook   v     Throckmorton,  8 

Caughey,   as   adm'r  etc.  119  Cal.  59,  Paige  Ch.  (N.  Y.)  ZZ. 

51   Pac.  13.  '1  VanHook   v.    Throckmorton,  8 

^T  Bell  V.  Birdsall,   19  How.    (N  Paige    Ch.     (N.    Y.)    33;    Freling- 

Y.)     Pr.    491,    sub    nom.    Betts    v.  huysen  v.  Colden,  4  Paige  Ch.   (N. 

Birdsall,  11  Abb.  (N.  Y.)   Pr.  222.  Y.)  204. 


1068  MORTGAGE    FORECLOSURES.  [§    728 

stances  plainly  indicating  that  such  possession  will  be  but 
momentary,  and  he  is  accordingly  ousted  the  same  day,  such 
execution  of  the  writ  will  be  insufficient;  the  writ  of  posses- 
sion will  not  be  regarded  as  properly  executed  until  the  sheriff 
and  his  officers  have  gone  and  the  purchaser  is  left  in  quiet 
and  settled  possession."''^ 

§  728.  Who  entitled  to  writ  of  assistance. — The  pur- 
chaser at  a  sale  made  under  a  mortgage  foreclosure  is,  of 
course,  entitled  to  a  writ  of  assistance;  and  it  has  been  held 
that  the  assignee  or  grantee  of  the  purchaser  is  entitled  to 
the  same  remedy,'^  on  the  further  proof  that  the  deed  from 
the  purchaser  to  him  has  also  been  exhibited  to  the  party  in 
possession.'* 

§  729.  Writ  of  assistance  improperly  granted, — Where 
a  writ  of  assistance  which  was  improperly  granted,  has  been 
executed,  or  having  been  properly  granted,  persons  not  prop- 
erly within  the  meaning  of  its  terms,  have  been  aggrieved  by 
having  it  executed  against  them,  the  court,  upon  motion,  will 
be  bound  to  correct  the  wrong;  and  the  persons  dispossessed 
under  such  writ  are  entitled  to  have  the  possession  restored 
to  them.'^^ 

Where  a  writ  of  assistance  in  favor  of  a  purchaser  at  a 
mortgage  foreclosure  sale  is  issued  upon  notice  against  a 
tenant  in  possession  of  the  mortgaged  premises,  and  is  exe- 
cuted by  placing  the  purchaser  in  possession  thereof,  it  will 
be  conclusive  upon  the  tenant  and  the  purchaser  as  to  the 
right  of  possession.  If  the  tenant  had  any  defence  against 
the  writ,  such  defence  should  have  been  presented  upon  the 
hearing  of  the  motion  for  the  writ ;  the  question  whether  the 

72  Newell  V.  Whigham,  102  N.  Y.  '4  js[_  y.  Life  Ins.  &  Trust  Co.  v. 

20,  1  N.  Y.  St.  Rep.  666,  reversing  Rand,  8  How.  (N.  Y.)   Pr.  35. 

99  Hun  (N.  Y.)  204.  ''^  Meiggs  v.  Willis,  8  N.  Y.  Civ. 

'3  Emerick    v.    Miller,    159    Ind.  Proc.    Rep.     125 ;     Chamberlain    v. 

317,  64  N.  E.  28.  Chloes.  35  N.  Y.  477. 


§  731]  DELIVERING  DEED.  1069 

writ  was  properly  awarded  cannot  be  reviewed  in  another 
action  in  another  court.'''^ 

§  730.  Writ  against  tenants  in  possession. — It  has  been 
said  that  the  foreclosure  of  a  mortgage  and  a  sale  thereunder 
of  the  demised  premises  pursuant  to  a  decree,  extinguishes 
the  title  of  the  mortgagor  and  also  the  rights  of  his  lessee."" 
But  where  tenants  in  possession  of  the  mortgaged  premises 
have  not  been  made  parties  to  the  suit,  the  purchaser  will 
not  be  entitled  to  possession  as  against  them;  '*  but  if  they  are 
made  parties,  they  will  be  bound  to  attorn  to  the  purchaser 
or  be  removed  by  a  writ  of  assistance,  notwithstanding  the 
fact  that  they  claim  under  an  unexpired  lease  executed  by  the 
mortgagor  for  a  term  of  years  prior  to  the  date  of  the  mort- 
gage foreclosed.'* 

§  731.  Writ  of  assistance  not  granted  against  holder  of 
paramount  title. — Where,  on  application  for  a  w^rit  of  as- 
sistance by  a  purchaser  at  a  sale  under  a  decree  of  fore- 
closure, the  party  in  possession  claims  to  hold  the  premises 
under  a  lease  executed  before  the  execution  of  the  mortgage 
under  which  the  sale  is  made,  the  court  will  not  grant  a  writ 
of  assistance  at  the  instance  of  such  purchaser.*"  In  all  cases 
where  the  person  in  possession  shows  a  ri-ght  paramount  to 
the  mortgage,  the  court  will  not  attempt  to  decide  any  ques- 
tions of  legal  title,  and  the  purchaser  will  be  obliged  to  seek 
possession  by  proceedings  at  law.*^ 

''^  Rawiszer  V.  Hamilton,  51  Uovf.  J.  Eq.  175,  64  Atl.   1086.     But  see 

(N.  Y.)   Pr.  297.  Reily   v.    Carter,   75    Miss.    798,   65 

''T Smith  V.  Cooley,    5    Daly    (N.  Am.  St.  Rep.  621,  23  So.  435. 

Y.)    401,  409;   Simcrs  v.   Saltus,  3  "^^  Lovett     v.      German     Reform 

Den.    (N.    Y.)     216;     Kershaw    v.  C/mrc/f,  9  How.  (N.  Y.)  Pr.  220. 

Thompson,  4  Johns.   Ch.    (N.   Y.)  ^^  Thomas  v.  DeBaiim,  14  N.  J. 

609.  Eq.   (1  McCart.)  Z7. 

''^  Davidson    v.     Weed,    21    App  ^^  Fay  v.  Stiibenrauch,  83  Pac.  82. 

Div.  579,  48  N.  Y.  Supp.  368.     See  (Cal.  App.)  ■,Board  of  Home  Mis- 

also  New  Jersey  Building,  Loan  &  sions    of    Presbyterian    Church    v 

Investment  Co.  v.  Schatzkin,  72  N.  Davis.  70  N.  J.  Eq.  577,  62  Atl.  447; 


1070  MORTGAGE   FORECLOSURES.  [§    732 

Where  a  purchaser  enters  into  an  arrangement  with  the 
mortgagor  subsequently  to  the  sale,  whereby  the  mortgagor 
remains  in  possession,  he  will  be  deemed  in  possession  under 
such  contract,  and  not  as  a  defendant  to  the  foreclosure 
suit,  and  the  purchaser  will  not  be  entitled  to  a  writ  of 
assistance  to  put  himself  in  possession  of  the  premises;  he 
will  then  be  left  to  his  remedy  by  an  action  at  law  for  eject- 
ment or  otherwise.®''  It  is  held  that  the  granting  of  a  writ 
of  assistance  to  put  a  purchaser  into  possession  of  the  premises 
rests  in  every  case  in  the  sound  discretion  of  the  court;  and 
that  in  all  cases  of  doubtful  right,  the  possession  will  be 
left  to  legal  adjudication.®* 

§  732.  Summary  proceedings  under  the  New  York 
Code. — By  a  provision  of  the  New  York  Code  of  Civil  Pro- 
cedure,®* the  remedy  by  summary  proceedings  to  obtain  pos- 
session of  premises  in  mortgage  foreclosures,  is  restricted  to 
those  cases  where  the  foreclosure  is  conducted  by  advertise- 
ment and  not  by  an  equitable  action.®* 

Ex  parte  Jenkins,  48  S.  C.  325,  26  82  Toll  v.  Hiller,  11  Paige  Ch.  (N. 

S.  E.  686;  Schenck  v.  Conover,  13  Y.)  228. 

N.  J.   Eq.    (2   Beas.)   220,  78  Am.  ^^  McComh  v.  Kankey,   1   Bland. 

Dec.  95.     See  McKomb  v.  Kankey,  Ch.     (Md.)     363,     note     C.       See 

1   Bland.   Ch.    (Md.)   363,  note  C;  Thomas  v.  DeBaum,  14  N.  J.  Eq. 

State    ex    ret.    Biddle  v.   Superior  (1  McCart.)  37. 

Court  of  King  County,   63    Wash.  84  §  2232. 

312,  115  Pac.  307;  Ricketts  v.  Chi-  ^^  Green  v.  Geiger,  46  App.  Div. 

cago  Permanent  Building  &  Loan  210,  61  N.  Y.  Supp.  524.     See  post, 

Asso.  67  111.  App.  71.  §  962. 


CHAPTER  XXIX. 
JUDGMENT  FOR  DEFICIENCY. 

REPORTING  DEFICIENCY — WHO  LIABLE  FOR — LIABILITY  ON  BOND — GUARANTY 
AND  ASSUMPTION — INTENTION  OF  PARTIES  GOVERNS — HOW  AMOUNT  OF 
DETERMINED — EXECUTION    FOR — MISCELLANEOUS   MATTERS. 

§  733.  Generally. 

§  734.  Referee  conducting  sale  reporting  deficiency. 

§  735.  Contingent  decree  for  deficiency. 

§  736.  Suit  at  law  for  deficiency. 

§  737.  Power  of  court  of  chancery  to  decree  judgment  for  deficiency. 

§  738.  Judgment  for  deficiency  against  mortgagor. 

§  739.  Same — Service  of  process  by  publication. 

§  740.  Same — Death  of  mortgagor. 

§  741.  Judgment  for  deficiency  against  third  persons. 

§  742.  Deficiency  against  assignor  guaranteeing  payment. 

§  743.  Deficiency  against  party  assuming  mortgage. 

§  744.  Mortgaged  premises  primary  fund — Subsequent  liability. 

§  745.  Assumption  of  mortgage — Defense  by  grantee. 

§  746.  Assumption  of  mortgage — When  grantee  not  liable  for  deficiency. 

§  747.  Release   from  liability  on  assumption. 

§  748.  No  liability  where  deed  subject  to  mortgage. 

§  749.  Oral  contract  of  assumption  may  be  enforced. 

§  750.  Intention  of  parties  determines  question  of  assumption. 

§  751.  No  judgment  for  deficiency  against  non-resident. 

§  752.  No  judgment  for  deficiency  for  installments  not  yet  due. 

§  753.  Deficiency — How   determined. 

§  754.  When  judgment  for  deficiency  may  be  docketed. 

§  755.  When  judgment  for  deficiency  becomes  a  lien. 

§  756.  Execution  for  deficiency. 

§  757.  Miscellaneous  matters  connected  with  judgments  for  deficiency. 

§  733.  Generally. — All  proceedings  to  collect  any  defi- 
ciency arising  on  the  sale  of  mortgaged  premises  under  a 
foreclosure  are  purely  statutory.^^     The  statute,  authorizing 

86  McCrickett  v.  Wilson,  50  Mich.      petition     to     set    such    proceedings 
513.    In  this  case  it  was  held  that  a       aside  for  want  of  notice  was  per- 

1071 


1072 


MORTGAGE    FORECLOSURES. 


[§  7ZZ 


a  judgment  of  deficiency  in  an  action  for  foreclosure  in  New 
York,  was  enacted  to  avoid  the  necessity  of  a  separate  action 
at  law,  and  to  enable  one  court  to  dispose  of  the  whole  case.®' 
In  most  of  the  states,  statutes  have  been  enacted  for  the 
regulation  of  mortgage  foreclosures,  giving  power  to  the 
court,  not  only  to  direct  the  sale  of  the  mortgaged  premises 
and  to  compel  the  delivery  of  the  possession  thereof  to  the  pur- 
chaser, but  also  to  adjudge  payment  by  the  mortgagor  or 
b)^  any  other  person  liable  for  the  debt  of  any  deficiency  that 
might  remain  unsatisfied  after  the  sale  of  the  mortgaged  prem- 
ises, and,  as  in  other  actions,  to  issue  the  necessary  execution 
upon  such  judgment  of  deficiency. ®® 

Without  statutory  authority  such  an  execution  could  not 
be  issued  in  a  foreclosure  against  the  property  of  the  mort- 
gagor or  other  person  liable  for  the  deficiency  remaining 
unsatisfied  after  the  application  of  the  proceeds  of  the  sale 
to  the  payment  of  the  mortgage  debt.*^  An  action  at  law  was 
formerly  the  only  remedy  for  the  recovery  of  such  deficiency. 

In  all  those  cases  where  there  is  an  express  agreement  for 
the  payment  of  money,  and  the  mortgaged  premises  fail  to 
sell  for  enough  to  pay  the  debt  and  costs  and  expenses  of  suit, 
the  court  will  direct  that  the  unsatisfied  balance  be  levied  on 
other  property  of  the  mortgage  debtor.^"    But  a  judgment  for 


missible  without  filing  a  bill  of  re- 
view. Wisconsin  National  Loan  & 
Building  Ass'c.  v.  Pride,  136  Wis. 
102,  116  N.  W.  637. 

^"^  S  CO  field  V.  Doscher,  72  N.  Y 
491 ;  Equitable  Life  Ins.  Co.  v. 
Stevens,  63  N.  Y.  341 ;  Thome  v 
Newby,  59  How.  (N.  Y.)  Pr.  120. 

88  N.  Y.  Code  Civ.  Proc.  §  1627 
Florida  Code  (Bush's  Dig.)  849; 
North  Carolina  Code,  §  190;  Wis- 
consin Rev.  Stat.  §  3156.  See 
Equitable  Life  Ins.  Co.  v.  Stevens, 
63  N.  Y.  341 ;  Thome  v.  Newby,  59 
How.  (N.  Y.)  Pr.  120;  Jannan  v. 
M'^iswall,  24  N.  J.  Eq.  (9  C.  E.  Gr.) 


267.  See  Hurd's  Stat.  1909,  chap. 
95,  §  16  (111.)  Strause  v.  Dutch. 
250  111.  326,  35  L.R.A.(N.S.)  413, 
95  N.  E.  286.  See  ante,  §  216,  et 
seq. 

^^Stark  V.  Mercer,  4  Miss.  (3 
How.)  377;  Fleming  v.  Sitton,  1 
Dev.  &  B.  (N.  C.)  Eq.  621;  Wad- 
dell  V.  Hewitt,  2  Ired.  (N.  C.)  Eq. 
252;  OrcharU  v.  Hughes,  68  U.  S. 
(1  Wall.)  73,  17  L.  ed.  560.  But 
see  Wightman  v.  Gray,  10  Rich.  (S. 
C.)   Eq.  518.     See  ante,  §§  216-220. 

90  Thomas  v.  Simmons,  103  Ind. 
419,  2  N.  E.  203,  3  Id.  381,  Ind. 
Code  1852,  §  634,  2  Ind.  Rev.  Stat. 


§    733]  JUDGMENT    FOR    DEFICIENCY.  1073 

a  deficiency  entered  where  no  indebtedness  actually  exists, 
cannot  be  used  for  purposes  of  redemption.®^ 

It  is  said  that  under  the  Mississippi  code,®^  providing  that, 
upon  the  confirmation  of  the  report  of  sale  of  property  under 
a  decree  to  satisfy  a  mortgage  or  other  lien,  the  court  shall 
render  a  decree  for  any  balance,  such  decree  may  be  had 
against  the  personal  representative  of  the  deceased  mort- 
gagor.'^ 

The  proceedings  to  collect  a  deficiency  left  after  applying 
the  proceeds  of  the  sale  of  mortgaged  lands  on  foreclosure 
sale  to  the  discharge  of  the  mortgage  debt,  are  purely  statu- 
tory, and  the  statute  in  each  particular  instance  governs. 
It  has  been  said  that  a  further  or  other  judgment  for  defi- 
ciency is  not  necessary  in  a  mortgage  foreclosure,  vv^here  the 
decree  of  foreclosure  directs  a  sale  and  judgment  for  defi- 
ciency; nor  is  an  order  confirming  the  sale  necessary  as  to 
those  persons  against  whom  the  judgment  for  deficiency  is 
directed.®*  But  a  foreclosure  decree  in  the  alternative  that 
the  defendants  pay  the  debt  within  thirty  days,  or  upon  their 
failure  the  land  shall  be  sold,  does  not  create  a  personal  lia- 
bility.®^ 

It  is  held  error  to  include  in  a  personal  decree  against  a 
mortgagor  on  the  notes  secured  by  the  mortgage  in  a  fore- 
closure suit  brought  by  the  mortgagee's  executor,  an  item 
of  interest  against  which  limitation  had  run  before  the  mort- 
gagee's death.®^  But  the  fact  that  the  mortgagee  in  an  action  to 
foreclose  his  mortgage  procured  an  amount  to  be  found  due 
in  excess  of  the  sum  actually  due,  does  not  preclude  the  re- 
covery of  a  deficiency  judgment  by  him  for  the  amount  actu- 
ally due,  where  in  the  proceedings  for  such  deficiency  judg- 

1876,    p.    262,    Rev.     Stat.    1881,   §  9*  Taylor  v.  Derrick,  46  N.  Y.  S. 

1097.  R.  583,  19  N.  Y.  Supp.  785. 

^^Wetherbee  v.  Fitch,  117  111.  67,  ^^  Dates    v.     Winstanley,    53    111. 

7  N.  E.  513.  App.  623. 

92  Miss.  Code,  §  1935.  ^^  Mclntire  v.   Conrad,  93   Mich. 

98  Weir  V.  Field,  67  Miss.  292,  7  526,  53  N.  W.  829. 
So.  355. 

Mortg.  Vol.  II.— 68. 


1074  MORTGAGE    FORECLOSURES.  [§    755 

ment  the  amount  found  due  in  the  decree  is  mutually  disre- 
garded and  a  new  accounting  had.®' 

A  personal  judgment  for  deficiency  may  be  rendered  not 
only  for  the  amount  of  interest  and  principal  remaining  un- 
paid, but  also  for  insurance  moneys,  under  a  provision  of 
the  mortgage  that  the  premises  shall  be  kept  insured,  and, 
in  case  of  default  made  by  the  mortgagor,  the  same  shall  be 
performed  by  the  mortgagee,  and  all  expenses  incurred  in 
so  doing  shall  be  paid  by  the  mortgagor.®* 

The  judgment  for  deficiency  and  the  proceedings  to  collect 
it  being  purely  statutory,  the  judgment  can  be  granted  only 
in  those  cases  where  authorized.  There  can  be  no  judgment 
for  deficiency  granted  against  the  maker  of  a  promissory  note 
secured  by  a  valid  deed  of  trust  before  the  security  has  been 
legally  exhausted  by  foreclosure.'®  Neither  can  a  judgment 
for  deficiency  be  had  upon  a  mortgage  foreclosed  for  default 
in  payment  of  interest,  in  those  cases  where  the  principal  is 
not  due,  and  there  is  no  provision  in  the  mortgage  that  it 
shall  become  due  upon  default  in  payment  of  installment  of 
interest.^ 

In  Connecticut  the  statute  *  bars  further  action  on  a  mort- 
gage debt  where  there  has  been  a  foreclosure  without  making 
the  mortgagee  a  party  thereto.^  In  New  York  it  is  held  that 
no  judgment  for  deficiency  can  be  rendered  under  the  code,* 
providing  for  judgment  for  deficiency  in  a  mortgage  debt 
after  sale  of  property  and  application  of  the  proceeds,  in  an 
action  to  foreclose  a  mortgage,  where  a  sale  in  rendered  im- 
possible by  foreclosure  and  sale  under  a  prior  mortgage,  al- 
though thereafter  judgment  for  sale  has  been  entered,  and  al- 
though a  surplus  is  left  upon  such  sale,  after  the  application  of 

^"^  Grand  Island  Sav.  &  L.  Asso.  ^  Farmers'    Loan    &    T.    Co.    v. 

V.  Moore,  40  Neb.  686;  59  N.  W.  Grape  Creek  Coal  Co.  13  C.  C.  A. 

115.  87,  65  Fed.  717.    See  post,  §  752. 

98  Building  &  L.  Asso.  v.  Logan,  2  Conn.  Act.  1878. 

66  Fed.  827.  3  Curtis  v.  Hazen,  56  Conn.  146, 

99  Powell    V.    Pattison,    100    Cal.       14  Atl.  771. 

236,  34  Pac.  677.  *  N.  Y.  Code  Civ.  Proc.  §  1627. 


§    734]  JUDGMENT    FOR    DEFICIENCY.  1075 

which  a  balance  remains  due  upon  the  debt.^  And  in  South 
Carolina  it  is  said,  in  the  case  of  Hartzog  v.  Goodwin,®  that 
a  mortgagee  who  fails  in  a  foreclosure  because  payments  made 
are  held  to  extinguish  the  mortgage  debt,  instead  of  another 
due  him  from  the  mortgagor  to  which  he  had  sought  to  apply 
them,  cannot  in  the  foreclosure  suit  have  personal  judgment 
against  the  mortgagor  for  the  balance  due  upon  the  latter  debt. 

§  734.  Referee  conducting  sale  reporting  deficiency. — 
The  referee  conducting  the  sale  in  a  mortgage  foreclosure,  is 
usually  required  to  report  any  deficiency  remaining  unpaid 
after  the  sale  of  the  property  and  the  application  of  the  pro- 
ceeds thereof  to  the  payment  of  the  debt.  The  referee  should 
ascertain  the  amount  of  the  deficiency,  and  also  the  names 
of  the  parties  who  are  liable  for  its  payment,  and  state  these 
facts  in  his  report  to  the  court;  a  direction  to  the  referee  to 
report  such  facts  should  be  included  in  the  decree  of  sale.' 

A  referee's  report  of  sale,  which  shows  that  the  apparent 
deficiency  is  produced  entirely  by  the  unauthorized  allowance 
of  a  claim  to  the  purchaser,  is  to  be  treated  as  not  reporting 
any  deficiency.' 

On  the  confirmation  of  the  report  of  the  ofificer  making* 
the  sale,  a  judgment  for  deficiency  may  be  docketed,  when  the 
judgment  and  decree  of  sale  so  provides.^  But  it  is  said  that 
such  judgment  cannot  be  entered,  even  contingently,  until 
after  the  officer  appointed  to  make  the  sale  has  made  and 
filed  his  report,^"  and,  even  then,  the  clerk  should  not  enter  up 

^  Frank  v.  Davis,  61  Hun  (N.  Y.)  ester  v.  Emerson,  10  Paige  Ch.  (N. 

496,  41  N.  Y.  S.  R.  292,   16  N.  Y.  Y.)  359;  Cartly  v.  Graham,  8  Paige 

Supp.  369.  Ch.   (N.  Y.)  480. 

6  37  S.  C.  603,  15  S.  E.  880.  lo  Hunt   v.   Dohrs,   39   Cal.   304 ; 

"^McCarthy   v.    Graham,   8   Paige  Culver  v.  Rogers,  28  Cal.  520;  Eng- 

Ch.   (N.  Y.)  480.  lund  v.   Lewis,  25   Cal.   337;    Cor- 

^  Bache  v.  Doscher,  67  N.  Y.  429,  merles  v.  Genella,  22  Cal.  116;  Row- 

aff'g  41  N.  Y.  Supr.  Ct.  (9  J.  &  S.)  land  v.  Leiby,  14  Cal.  156;  Lippcrd 

150,    See  ante,  §  225.  v.   Edwards,  39  Ind.   165 ;   Cobb   v. 

'See  Bache  v.  Doscher,  9  Jones  Thornton,  8  How.  (N.  Y.)  Pr.  66. 
&  S.   (N.  Y.)   150;  Bank  of  Roch- 


1076  MORTGAGE    FORECLOSURES.  [§    734 

such  judgment  without  the  further  order  of  the  court.^^  Thus, 
it  is  said  by  the  supreme  court  of  South  CaroHna,  in  the 
case  of  Lawton  v.  Perry, ^^  that  no  judgment  exists  for  any 
deficiency  of  the  mortgage  debt  after  the  proceeds  of  a  sale 
under  foreclosure  of  the  mortgaged  property  have  been  applied 
thereto,  until  an  order  of  the  court  is  had  on  the  report  of 
the  officer  making  the  sale  showing  what  deficiency  exists, 
for  a  judgment  for  such  deficiency,  with  leave  to  enforce  its 
collection  by  execution.  Consequently,  a  judgment  of  fore- 
closure is  erroneous  and  void  in  providing  for  the  recovery  of 
any  specific  sum  of  money  as  a  deficiency  to  be  enforced  by 
execution,  before  the  mortgaged  premises  are  sold  and  the  pro- 
ceeds of  the  sale  found  to  be  insufficient.^^ 

The  rule  requiring  application  to  the  court  for  an  order 
confirming  the  report  of  the  officer  appointed  to  make  the 
sale,  and  to  enter  further  judgment  upon  the  filing  of  said  re- 
port, before  issuing  execution  in  supplementary  proceedings, 
:is  not  uniformly  applied  in  the  courts.  In  New  York  it  is 
held  not  to  be  essential ;  "  a  failure  to  procure  a  confirmation 
before  issuing  such  execution  being  a  mere  irregularity  at  most, 
and  inasmuch  as  it  is  purely  a  question  of  procedure,  the  de- 
■cision  of  the  lower  court  is  final. ^*  In  Michigan,  a  special 
application  is  required  to  be  made  to  the  court  before  an  exe- 
cution can  issue  on  a  judgment  for  deficiency  ;^^  and  in 
JMebraska,  a  prior  order  of  confirmation  is  essential,"  as  is  also 
the  case  in  New  Jersey  ^*  and  Wisconsin." 

^^Leviston  v.  Swan,  33  Cal.  480.  ^^  Moore  v.  Shaw,  77  N.  Y.  512, 

See  Hooper  V.  McDade,  1  Cal.  App.  affg.   15  Hun   (N.  Y.)   428;   N.  Y. 

733,  82  Pac.  1116.  Code  Civ.  Proc.  §  721,  subd.  12. 

12  40  S.  C.  255,  18  S.  E.  861.  ^^McCrickett  v.  Wilson,  50  Mich. 

^^Parr  v.  Lindler,  40  S.   C.   193,  513,   15  N.  W.  885;  Gies  v.  Green, 

18  S.  E.  636.  42  Mich.  107,  2  N.  W.  283. 

14  Bicknell    v.    Byrnes,    23    How.  "  Clapp  v.  Maxwell,  13  Neb.  542, 

(N.   Y.)    Pr.  486;   Springsteene  v.  14  N.  W.  653. 

Gillett,  30  Hun  (N.  Y.)  260;  Moore  "  wkHe  y.  Zust,  28  N.  J.  Eq.  (1 

V.  Shaw,  15  Hun  (N.  Y.)  428,  affd.  Stew.)  107. 

77  N.  Y.  512;  Baclie  v.  Doscher,  9  ^^Tormey    v.    Gerhart,    41    Wis. 

Jones  &  S.  (N.  Y.)  150,  affd.  67  N.  54,  Wis.  Laws,  p.  243. 
Y.  429. 


§    735}  JUDGMENT    FOR    DEFICIENCY.  1077 

§  735.  Contingent  decree  for  deficiency. — The  plaintiff 
in  an  action  to  foreclose  a  mortgage  cannot  have  a  personal 
judgment  against  any  of  the  defendants  prior  to  the  final 
decree  of  foreclosure  and  sale.^°  The  correct  practice  is,  to 
make  a  contingent  judgment  in  the  decree  of  foreclosure  and 
sale  for  the  payment  of  any  deficiency  which  may  appear 
upon  the  coming  in  and  the  confirmation  of  the  report  of 
sale,  and  that  the  plaintiff  have  execution  therefor. ^^  An 
execution  cannot  be  issued  until  the  deficiency  has  been  ascer- 
tained from  the  report  of  sale.^^  Where  the  person  adjudged 
in  the  decree  to  be  liable  for  the  deficiency,  has  not  appeared 
in  the  case,  it  is  the  practice  in  New  Jersey,  after  ascertaining 
the  amount  of  such  deficiency,  to  award  execution  therefor 
ex  parte.^^ 

The  deficiency  for  which  a  mortgagor  is  liable,  is  ascer- 
tained by  deducting  the  proceeds  of  the  sale  from  the  amount 
due  on  the  mortgage  for  principal  and  interest,  together  with 
the  costs  and  all  taxes  and  assessments.^*  In  a  case  where  the 
decree  of  sale  directed  that  the  mortgagor,  or  other  party  per- 
sonally liable  for  the  debt,  should  pay  any  deficiency  arising 
on  the  sale,  the  property  was  struck  off  for  enough  to  satisfy 
the  mortgage,  but  the  purchaser  refused  to  complete  the  sale ; 
an  order  requiring  him  to  do  so  was  obtained,  but  was  not  en- 
forced; the  plaintiff,  without  proceeding  against  him  for 
contempt,  procured  an  order  for  a  resale,  and  upon  the  second 
sale  there  was  a  deficiency ;  it  was  held  that  the  mortgagor,  or 

2°  Cobb  V.  Thornton,  8  How.  (N.  But    in     Michigan     a     deficiency 

Y.)   Pr.  66.  judgment  cannot  be  entered  with- 
al Co  fct  V.  Thornton,  8  How.  (N.  out  notice  to  the  mortgagor.    Pren- 

Y.)  Pr.  66;  McCarthy  v.  Graham,  8  tis  v.  Richardson's  Estate,  118  Mich. 

Paige  Ch.    (N.  Y.)   480.     See  Eg-  259,  76  N.  W.  381. 

gleston  v.  Morrison,  185  111.  577.  57  ^^  Marshall  v.   Davies,   78  N.   Y. 

N.  E.  775.     See  ante,  §§  223-225.  414,  reversing  16  Hun  (N.  Y.)  606. 

22  Bank  of  Rochester  v.  Emerson,  See  also  Mitchell  v.  Bowne,  63 
10  Paige  Ch.  (N.  Y.)  115;  Howe  How.  (N.  Y.)  Pr.  1,  14  N.  Y.  Wk. 
V.  Lemon,  37  Mich.  164.  Dig.  234.     See  ante,  §  225. 

23  White  V.  Zust,  28  N.  J.  Eq.  (1 
Stew.)   107. 


1078  MORTGAGE    FORECLOSURES.  [§    735 

Other  party  liable  for  the  debt,  was  personally  liable  for  the 
deficiency  arising  on  the  resale.*^ 

The  deficiency  contemplated  by  the  New  York  Code  ^*  has 
been  held  to  be  only  the  deficiency  arising  from  an  actual  sale 
under  a  foreclosure  of  the  mortgage,  and  not  the  deficiency 
caused  to  a  second  mortgagee  by  a  sale  under  a  prior  mortgage  ; 
in  the  latter  case  the  remedy  would  be  by  an  action  on  the 
bond.^' 

A  personal  judgment  against  the  maker  of  a  promissory 
note  secured  by  a  valid  deed  of  trust,  is  improper  before  the 
security  has  been  legally  exhausted  by  foreclosure.^®  The 
court  of  appeals  of  Missouri,  in  the  case  of  Steckman  v. 
Harber,^^  say  that  a  person  who  has  purchased  notes  covered 
by  a  deed  of  trust  from  one  who  agreed  that  he  would  not 
collect  the  money  when  it  became  due  without  first  giving 
those  liable  thereon  notice,  and  who  directs  the  foreclosure  of 
such  deed  at  a  place  100  miles  distant  without  notifying  those 
liable,  although  he  sees  them  almost  daily  and  knows  that 
they  are  able  to  pay  the  amount  of  the  notes,  will  not  be 
allowed  a  judgment  for  the  amount  of  the  notes,  interest 
and  costs,  without  making  a  deed  to  those  liable  thereon  of 
the  lands  purchased  by  him  at  the  sale  under  the  deed  of 
trust.  It  is  said  by  the  supreme  court  of  New  York,  in  the 
case  of  Brewer  v.  Longnecker,^"  that  a  provision  in  a  decree 
foreclosing  a  mortgage  for  an  installment  of  the  whole  sum 
secured,  and  directing  a  sale  of  the  whole  premises,  and  that 
in  case  of  a  deficiency  in  the  proceeds  to  pay  the  installment  the 
defendants  personally  liable  for  the  debt  pay  such  deficiency, 
is  improperly  amended  by  providing  for  the  payment  of  a 
deficiency  in  the  whole  mortgage  debt  not  due,  where  there  is 
another  provision  that  in  case  the  proceeds  of  the  sale  shall  be 

25  Goodwin  v.  Simonson,  74  N.  Y.  Hun.  (N.  Y.)  44,  and  note  to  §  738 
133.     But   see    Walsh  v.  Robinson,      post. 

135  Mich.  16,  97  N.  W.  55,  99  N.  28  Powell    v.    Pattison,    100    Cal. 

W.  282.  236,  34  Pac.  677. 

26  Code  Civ.  Proc.  §  1627.  29  55  Mo.  App.  71. 

^T  Loeb  V.  Willis,  22  Hun  (N.  Y.)  30  15  n.  Y.  Supp.  937,  40  N.  Y 

508.      See    Siewert    v.    Hamel,    33      S.  R.  614. 


§    736]  JUDGMENT    FOR    DEFICIENCY.  1079 

insufficient  to  pay  the  whole  debt  the  plaintiff,  as  installments 
become  due,  may  apply  for  judgment  against  such  defend- 
ants. 

§  736.  Suit  at  law  for  deficiency. — In  those  cases  where 
there  is  an  express  agreement  for  the  payment  of  money, 
and  on  the  sale  of  the  mortgaged  premises  the  sum  realized 
from  the  property  is  not  sufficient  to  discharge  the  mortgage 
debt,  the  mortgagee  or  holder  of  the  mortgage  may  maintain 
an  action  at  law  for  the  amount  remaining  after  deducting 
from  the  face  of  the  debt,  with  interest  and  costs,  the  amount 
for  which  the  mortgaged  property  was  sold ;  ^^  because  in  such 
a  case  the  foreclosure  merely  extinguishes  the  debt  to  the  ex- 
tent of  the  money  produced  by  the  sale  of  the  mortgaged  prem- 
ises and  applicable  to  the  obligation.^^  The  supreme  court  of 
California  say,  in  the  case  of  Blumberg  v.  Birch,^^  that  a 
new  action  upon  a  note  originally  secured  by  a  mortgage,  for 
a  deficiency  upon  foreclosure  upon  which  no  valid  judgment 
can  be  obtained  because  service  was  made  by  publication,  is 
not  barred  by  the  code  of  that  State,^^  providing  that  there 
can  be  but  one  action  for  the  recovery  of  any  debt  or  the  en- 

^^  Porter  v.  Pillsbury,  36  Me.  278;  Hartley,  2  Bro.  Ch.  125;  sub  nom. 

Briggs  v.  Richmond,  27  Mass.    (10       Tooke  v.  ,  2  Dick,  785;  Aylet 

Pick.)  391,  396,  20  Am.  Dec.  526;  v.  Hill,  2  Dick  551;  Dashwood  v. 

West  V.  Chamberlain,  25  Mass.    (8  Blythway,    1    Eq.    Cas.    Abr.    317; 

Pick.)  336;  Amory  v.  Fairbanks,  3  Perry  v.  Barker,  13  Vesy.  198,  204. 

Mass.  562;  Andrews  v.  Scotton,  2  9  Rev.   171;   Strause  v.  Dutch,  250 

Bland.  Ch.   (Md.)   269;  Lansing  v.  111.    326,   35    L.R.A.(N.S.)    413,   95 

Goelet,  9  Cow.  (N.  Y.)  346;  Globe  N.  E.  286.     See  also  Johns  v.  Wil- 

Ins.    Co.   V.   Lansing,   5    Cow.    (N.  son,  6  Ariz.  125,  53  Pac.  583.     But 

Y.)  380,  15  Am.  Dec.  474;  Case  v.  see   Matter  of   Marshall,   53    App. 

Boughton,  11  Wend.    (N.  Y.)    106,  Div.  136,  65  N.  Y.  Supp.  760. 

109;   Morgan  v.  Plumb.    9    Wend.  ^^  Globe   Ins.    Co.   v.    Lansing,   5 

(N.  Y.)  287,  292;  Spencer  v.  Har-  Cow.    (N.    Y.)    380,    15    Am.    Dec. 

ford,  4  Wend.    (N.   Y.)    384,   386;  474;  Dunkley  w.  Van  Buren,  2  John. 

Hughes  v.   Edwards,  22   U.   S.    (9  Ch.  (N.  Y.)  231. 

Wheat.)  489,  6  L.  ed-  14;  Hatch  v.  8899  Cal.  416,  37  Am.  St.  Rep.  67. 

^Vhite,  2  Gall.  C.  C.  154;  Omaly  v.  34  Pac.  102. 

Swan,  3  Mass.  C.  C.  474;  Tooke  v.  »*  Cal.  Code  Civ.  Proc.  §  726. 


1080  MORTGAGE    FORECLOSURES.  [§    7Z7 

forcement  of  any  right  secured  by  mortgage  upon  either  real 
or  personal  property.  It  is  said  by  the  supreme  court  of  New 
York,  in  the  case  of  Schultz  v.  Mead,^^  that  leave  to  sue  at 
law  on  a  judgment  for  deficiency  is  not  necessary,  because 
the  code  ^^  has  reference  to  the  original  debt  which  the  mort- 
gage secures,  and  does  not  apply  to  a  suit  for  the  deficiency. 
It  is  said,  in  the  case  of  Winters  v.  Hub  Mining  Com- 
pany,'"'  that  a  mortgagee  who  obtains  a  mortgage  of  fore- 
closure cannot  thereafter  maintain  a  separate  action  for  the 
deficiency  remaining,  against  the  person  liable  for  the  debt, 
under  a  statute  providing  that  there  can  be  but  one  action 
for  the  recovery  of  any  debt,  or  the  enforcement  of  any 
right  secured  by  mortgage  upon  real  or  personal  property, 
which  action  must  be  in  accordance  with  the  provisions  there- 
in made  for  the  sale  of  the  property  and  judgment  for  the 
deficiency.'* 

§  737.  Power  of  court  of  chancery  to  decree  judgment 
for  deficiency. —  In  the  absence  of  statutory  provisions 
giving  it  authority,  a  court  of  equity  possesses  no  power  to 
give  a  lien  upon  or  to  sequestrate  any  other  property  of  the 
mortgagor  as  an  additional  security,  until  the  property  de- 
scribed in  the  mortgage  has  been  exhausted ;  ^^  for  that  reason, 
it  cannot  decree  the  payment  of  any  deficiency  remaining 
after  the  application  of  the  proceeds  of  the  sale  of  the  mort- 
gaged premises  to  the  payment  of  the  debt,  unless  the  court 
of  chancery  would  have  had  jurisdiction  to  enforce  the  debt 
without  the  mortgage.*" 

36  8  N.  Y.  Supp.  663,  29  N.  Y.  S.  87  57  Ped.  287. 

R.  203.  38  Idaho  Rev.  Stat.  4520. 

36  N.  Y.  Code  Civ.  Proc.  §  1628.  39  Qlapp  v.  Maxwell,  13  Neb.  542. 

But  see  Robert  v.  Kidansky,  111  4°  IVebber  v.  Blanc,  39  Fla.  224, 

App.  Div.  475,  97  N.  Y.  Supp.  913 ;  22  So.  655 ;  Rosenbaum  v.  Kershaw, 

Morrison  v.   Slater,   128  App.   Div.  40  111.   App.  659.     See  Dunkley  v. 

467,   112   N.   Y.   Supp.  855;   Dana-  VanBuren,  3  Johns.    Ch.    (N.   Y.) 

stadt  V.  Manson,  144  App.  Div.  249  330;  Hunt  v.  Lewin,  4  Stew.  &  Port. 

128  N.  Y.  Supp.  992.  (Ala.)    138;  Morgan  v.   Wilkins,  6 


§    738]  JUDGMENT    FOR    DEFICIENCY.  1081 

Thus,  where  no  note,  bond,  mortgage  or  other  legal  obliga- 
tion, was  given  to  secure  the  payment  of  the  debt,  or,  if  given, 
had  been  lost,  a  court  of  equity  could,  in  some  states,  enforce 
its  payment  as  an  equitable  claim  against  the  mortgagor,  by 
a  personal  judgment  for  the  balance  remaining  unsatisfied 
after  the  sale  of  the  premises." 

It  is  said,  in  the  case  of  Tafifey  v.  Atcheson,*^  that  a  mort- 
gage executed  in  New  Jersey  before  the  statute  of  1880,*^ 
declaring  that  no  decree  for  deficiency  shall  be  made  in  a  fore- 
closure suit,  is  subject  thereto,  because  the  act  does  not  affect 
the  mortgage,  but  merely  the  remedy  thereon.  The  supreme 
court  of  Utah,  in  the  case  of  Brerton  v.  Mills,**  say  that  the 
power  inherent  in  the  general  equity  jurisdiction  given  to 
the  Utah  supreme  and  district  courts  by  the  Organic  Act  *^  to 
direct  a  personal  judgment  for  the  debt  and  proceedings  to 
collect  it,  before  ordering  a  sale  of  mortgaged  premises  con- 
veyed by  the  mortgagor  with  full  covenants  of  warrantv, 
cannot  be  abridged  by  a  territorial  statute  providing  that  the 
lands  must  first  be  sold. 

The  circuit  courts  of  the  United  States  under  equity  rule 
92  have  equitable  jurisdiction  in  a  foreclosure  suit  to  award 
a  personal  judgment  for  a  deficiency.*^ 

§  738.  Judgment   for  deficiency   against  mortgagor. — 

On   the   foreclosure   of   a   mortgage   by   the   mortgagee,    the 


Hewitt,  2  Ired.  (N.  C.)  Eq.  252. 
See  Block  v.  Allen,  99  Ga.  417,  27 
S.  E.  7ZZ. 

«42  N.  J.  Eq.  (15  Stew.)  182, 
6  Atl.  885. 

43  N,  J.  Pamphlet  Laws,  18S0,  p. 


J.  J.  Marsh.  (Ky.)  28;  McGee  v 
Davie,  4  J.  J.  Marsh.  (Ky.)  70 
Downing  v.  Palmate er,  1  T.  B.  Mon 
(Ky.)  64;  Stark  v.  Mercer,  4  Miss 
(3   How.)    377;  Fleming  v.  Sitton, 

I  Dev.    &    B.    (N.    C.)    Eq.    621; 
Orchard   v.   Hughes,  68   U.    S.    (1      255. 

Wall.)    73,   17  L.  ed.  560;  Noonan  ^7  Utah,  426.  27  Pac.  81. 

V.   Lee,   67   U.    S.    (2    Black)    499.  « u.  S-  Rev.  Stat.  §  1868. 

II  L.  ed.  278.    See  ante,  §§  216-220.  ^^  Grant  v.  Winona  &  Southwest- 
«  Crutchfield    v.    Coke,    6    J.    J.       em  Ry.  Co.  85  Minn.  422.  89  X.  W. 

Marsh.      (Ky.)      89;      Waddell     v.       60;  Northwestern  Mutual  Life  Ins. 


1082 


MORTGAGE    FORECLOSURES. 


[§   738 


debtor  is  entitled  to  credit  only  for  the  net  proceeds  realized 
from  the  sale,  after  deducting  the  costs  and  expenses  of  the 
sale  and  all  liens  for  taxes."  No  proceedings  can  be  had 
upon  a  judgment  or  decree  to  compel  the  payment  of  the  de- 
ficiency until  the  report  of  the  referee  or  other  officer  con- 
ducting the  sale  has  been  filed  and  duly  confirmed,  and  the 
exact  amount  of  such  deficiency  has  been  ascertained." 

It  seems  that  where  the  judgment  in  an  action  for  fore- 
closure provides,  "that  if  the  proceeds  of  the  sale  be  insuffi- 
cient to  pay  the  amount  so  reported  to  be  due  to  the  plaintiff, 
the  said  referee  specify  the  amount  of  such  deficiency  in  his 
report  of  sale,  and  that  the  defendant  pay  the  same  to  the 
plaintiff,"  it  is  not  necessary  to  apply  to  the  court  for  an  order 
confirming  the  report  of  the  referee  before  issuing  execution 
against  the  defendant  for  the  amount  of  the  deficiency,  nor 
to  enter  any  further  judgment  upon  the  filing  of  the  said 
report.*' 

In  most,  if  not  all,  the  states  there  are  statutes  authorizing 
the  court  to  award  a  conditional  judgment  for  any  deficiency 


Co.  V.  Keith,  77  Fed.  374;  Seattle 
L.  S.  &  E.  Ry.  Co.  V.  Union  Trust 
Co.  79  Fed.  179. 

^T  Marshall  v.  Davies,  78  N.  Y. 
414. 

^^Bache  v.  Doscher,  41  N.  Y. 
Supr.  Ct.  (9  J.  &  S.)  150;  Bank  of 
Rochester  v.  Emerson,  10  Paige  Ch. 
(N.  Y.)  359;  Tormey  v.  Gerhart, 
41  Wis.  54 ;  Baird  v.  McConkey,  20 
Wis.  297.  In  Siewert  v.  Hamel,  33 
Hun  (N.  Y.)  44,  during  the  pen- 
dency of  an  action  brought  to  fore- 
close a  mortgage,  a  prior  mortgage 
upon  the  same  premises  was  fore- 
closed, and  the  premises  were  sold 
and  purchased  by  the  plaintiff.  The 
surplus  arising  from  such  sale  was 
applied  by  the  plaintiff  in  reduction 
of  the  amount  due  upon  his  sec- 
ond   mortgage.     The    usual    judg- 


ment of  foreclosure  was  then  en- 
tered, after  the  said  sale  under  the 
prior  mortgage,  directing  the  ref- 
eree to  specify  the  amount  of  the 
deficiency  in  his  report  of  the  sale, 
and  adjudging  the  defendant  to  pay 
the  same  to  the  plaintiff.  There- 
after the  plaintiff,  without  having 
the  premises  sold  under  his  judg- 
ment, applied  for  leave  to  enter  a 
judgment  of  deficiency  for  the 
amount  remaining  due  upon  his 
judgment  after  applying  thereon 
the  amount  of  surplus  money  re- 
ceived under  the  foreclosure  of  the 
prior  mortgage.  The  application 
was  held  to  have  been  properly 
made  and  granted.  See  ante,  §§ 
224,  225,  227,  735. 

'^^  Moore  v.   Shaw,   IS   Hun    (N. 
Y.)  428. 


§  738] 


JUDGMENT    FOR    DEFICIENCY. 


1083 


there  may  be  found  and  reported  to  the  court  by  the  officer 
authorized  to  make  the  sale.®*     Under  these  statutes  it  has 


50  See  Goodlett  v.  St.  Elmo 
Invest  Co.  94  Cal-  297,  29  Pac.  105 ; 
Windham  County  Sav.  Bank  v. 
Himes.  55  Conn.  433,  12  Atl.  517; 
Shelden  v.  Erskine,  78  Mich.  627, 
44  N.  W.  146;  IVeir  v.  Field,  67 
Miss.  292,  7  So.  355 ;  Flentliam  v. 
Steward,  45  Neb.  640,  63  N.  W. 
924 ;  Grand  Island  Sav.  &  L.  Assoc. 
V.  Moore,  40  Neb.  686,  59  N.  W. 
115;  Frank  v.  Davis,  135  N.  Y.  275, 
31  N.  E.  1100,  48  N.  Y.  S.  R.  86, 
29  Abb.  (N.  Y.)  N.  C.  294,  22 
Civ.  Prac.  426,  20  Wash.  L.  R.  699, 
17  L.R.A.  306;  Clark  v.  Simmons, 
55  Hun  (N.  Y.)  175,  8  N.  Y.  Supp. 
74,  28  N.  Y.  S.  R.  738;  Schultz  v. 
Mead,  8  N.  Y.  Supp.  663,  29  N.  Y. 
S.  R.  203;  Shumway  v.  Orchard, 
12  Wash.  104,  40  Pac.  634;  Shep- 
herd V.  Pepper,  133  U.  S.  626,  33  L. 
ed.  706,  10  Sup.  Ct.  438. 

The  Connecticut  Act  of  1833, 
Rev.  1875,  P-  358,  §  2,  providing  that 
a  mortgagee  may  recover  the  de- 
ficiency on  foreclosure,  is  not  re- 
pealed by  Conn.  Laws  1878,  chap. 
129,  providing  for  an  appraisal  of 
the  mortgaged  property  by  apprais- 
ers, and  that  the  mortgagee  shall 
recover  only  the  difference  between 
the  value  of  the  property  as  fixed 
by  the  appraisal  and  the  amount  of 
his  claim,  except  where  the  ap- 
praisal is  made  under  a  later  stat- 
ute. Windham  County  Sav.  Bank 
V.  Himes,  55  Conn.  433,  12  Atl.  517. 

The  court  holds  these  provisions 
are  not  inconsistent,  but  alternative 
Also  that  part  of  the  latter  Act 
providing  that  no  suit  for  deficiency 
shall  be  brought  against  one  not  a 
party  to  the  foreclosure  suit  repeals 


so  much  of  the  former  Act  as  al- 
lowed suit  against  those  not  parties. 
Windham  County  Sav-  Bank  v. 
Himes,  55  Conn.  433,  12  Atl.  517 

In  Michigan,  How.  Mich.  Stat. 
§  670^,  giving  the  court  power  to 
decree  payment  of  any  balance  of  a 
mortgage  debt  remaining  unsatis- 
fied after  the  sale,  does  not  con- 
template the  case  where  there  are 
several  complainants  who  hold  the 
mortgage  jointly,  but  have  no  joint 
rights  to  any  of  the  debts  secured, 
and  no  provision  is  made  for  sepa- 
rate personal  decree  of  deficiency 
in  favor  of  the  separate  complain- 
ants. Shelden  v.  Erskine,  78  Mich. 
627,  44  N.  W.  146. 

In  Mississippi  the  exercise  of  the 
power  conferred  by  Miss.  Code, 
§  1935,  upon  the  confirmation  of  the 
report  of  sale  of  property  under  a 
decree  to  satisfy  a  mortgage  or 
other  lien,  to  render  a  decree  for 
any  balance,  is  not  to  be  limited  to 
the  term  at  which  the  sale  is  con- 
firmed, but  a  decree  for  the  bal- 
ance may  be  moved  for  at  any  time 
before  the  statute  of  limitation  bars 
its  execuation.  Weir  v.  Field,  67 
Miss.  292,  7  So.  355. 

In  Nebraska  the  Code  of  Civil 
Procedure,  §  847  (now  repealed) 
expressly  authorized  the  district 
court,  on  the  coming  in  of  the  re- 
port of  sale  of  mortgaged  prem- 
ises, to  render  a  personal  judgment 
and  award  execution  for  any  de- 
ficiency remaining  unpaid  on  the 
decree.  Flentham  v.  Steward,  45 
Neb.  640,  63  N.  W.  924.  See 
Blumle  v.  Kramer,  14  Okl.  366,  79 
Pac.  215. 


1084 


MORTGAGE    FORECLOSURES. 


[§  738 


been  held  that  a  purchaser  at  a  foreclosure  sale  under  a  first 
mortgage,  being  also  owner  of  a  second  mortgage,  may  pur- 
chase at  a  subsequent  sale  thereunder  subject  to  his  rights  ac- 
quired on  the  first  sale,  and  enter  judgment  for  the  defi- 
ciency.** And  it  is  said  the  fact  that  the  mortgagee  made  a 
profit  upon  his  purchase  of  the  mortgaged  premises  is  not  a 
defense  to  an  action  on  a  judgment  of  deficiency.*^  It  is 
thought  that  in  a  suit  against  an  association  of  individuals 
sustaining  to  each  other  the  relation  of  partners,  to  foreclose 
a  mortgage  made  by  it,  the  members  at  the  time  of  the  exe- 
cution of  the  mortgage,  who  were  made  parties  to  the  suit,  are 
each  liable  to  a  personal  judgment  for  the  deficiency.*' 

The  New  York  court  of  appeals,  in  Frank  v.  Davis,**  say 
that  a  judgment  for  a  deficiency  under  a  junior  mortgage 
is  not  prevented  by  the  impossibihty  of  a  sale  of  the  land, 
which  results  from  the  fact  that,  pending  appeal  from  the 
judgment  of  foreclosure,  a  sale  of  the  land  was  made  under 
a  prior  mortgage  and   surplus   was   left   insufficient   to  pay 


In  Washington,  under  Code  Pro- 
cedure, §  628,  providing  that  when 
there  is  an  express  agreement  for 
the  payment  of  money  secured,  con- 
tained in  the  mortgage  or  separate 
instrument,  the  decree  of  foreclos- 
ure shall  direct  that  the  balance  due 
remaining  unsatisfied  after  the  sale 
shall  be  satisfied  by  any  property 
of  the  mortgage  debtor,  a  personal 
judgment  may  be  rendered  against 
the  makers  of  a  note  secured  by  a 
mortgage  upon  real  estate  at  the 
time  of  rendition  of  a  decree  of 
foreclosure,  so  as  to  make  it  a  gen- 
eral lien  upon  all  the  property 
owned  by  the  mortgagor  at  the  time 
of  the  entry  thereof  or  thereafter 
acquired,  and  a  previous  return  of 
sale  is  not  essential.  Shumway  v. 
Orclmrd,  12  Wash.  104,  40  JPac. 
634. 

Under  U.  S.  Rev.  Stat.  §  808, 


lating  to  the  District  of  Columbia,  a 
decree  in  personam  is  authorized 
against  a  debtor  for  the  balance  re- 
maining due  after  the  proceeds  of 
the  sale  of  lands  covered  by  a  mort- 
gage or  a  deed  of  trust  in  the 
nature  thereof  have  been  applied  to 
the  satisfaction  of  the  debt.  Shep- 
herd V.  Pepper,  133  U.  S.  626,  32  L. 
ed.     706,  10  Sup.  Ct.  438. 

51  Clark  v.  Simmons,  55  Hun  (N. 
Y.)  175,  28  N.  Y.  S.  R.  738,  8  N. 
Y.  Supp.  74. 

62  Schult;:  v.  Mead,  8  N.  Y.  Supp. 
663,  29  N.  Y.  S.  R.  203. 

53  Goodlett  V.  St.  Elmo  Invest. 
Co.  94  Cal.  297,  29  Pac.  505. 

5M35  N.  Y.  275.  31  N.  E.  1100, 
48  N.  Y.  S.  R.  86,  29  Abb.  (N.  Y.) 
N.  C.  294,  22  Civ.  Proc.  Rep.  426, 
20  Wash.  L.  Rep.  699,  17  L.R..^ 
306. 


§    738]  JUDGMENT    FOR    DEFICIENCY.  1085 

the  junior  mortgage,  although  the  statute  provides  for  a  per- 
sonal judgment  for  the  residue  of  the  debt,  which  is  unsatis- 
fied "after  a  sale  of  the  mortgaged  property."  And  it  is 
held  by  the  supreme  court  of  Nebraska,"  that  a  loan  associa- 
tion holding  stock  of  a  mortgagor  as  additional  security  for 
the  mortgage  debt,  is  not  obliged  to  resort  to  the  security 
furnished  by  such  stock  before  recovering  a  judgment  for  defi- 
ciency against  the  mortgagor.  The  supreme  court  of  New 
York,  in  the  case  of  Hulbert  v.  Clark,®^  say  that  an  action  for 
the  foreclosure  of  a  mortgage  of  real  estate  given  to  secure 
a  simple-contract  debt  evidenced  by  promissory  notes,  being 
an  action  on  the  mortgage,  and  not  on  the  notes,  is  solely 
an  action  in  rem  and  no  personal  judgment  for  a  deficiency 
can  be  had  therein.  And  it  is  said  that  a  mortgage  corporation 
cannot  recover  against  the  mortgagor  in  an  action  on  the  note, 
where  it  purchased  the  property  for  value  from  the  mort- 
gagor's grantee,  causing  the  conveyance  to  be  made  to  its 
president  to  prevent  the  merging  of  the  mortgage  in  the  legal 
title,  and,  on  default  of  payment  of  the  mortgage  debt,  fore- 
closed and  bid  in  the  property."  The  supreme  court  of  Penn- 
sylvania, in  the  case  of  Cock  v.  Bailey,*'  say  that  the  holders 
of  bonds  of  a  limited  partnership,  secured  by  a  mortgage  upon 
its  realty,  who  purchased  the  mortgaged  premises  through  a 
trustee  designated  by  them,  subject  to  the  mortgage  lien,  can- 
not afterwards  collect  the  amount  of  the  bonds  from  the 
company  or  its  members  individually,  since  the  bonds  be- 
come a  part  of  the  purchase  money  withheld  at  the  time  of  the 
sale.  And  it  is  thought  a  failure  to  carry  out  an  agreement 
of  a  mortgagee  to  bid  the  full  amount  of  his  judgment  on 
foreclosure  sale,  in  consideration  of  being  permitted  to  take 
a  default,  constitutes  an  actionable  fraud  or  wrong  which  en- 

65  Grand  Island  Sav.  &  L.  Asso.  ^'^  National  Invest.  Co.  v.  Nordin, 

V.  Moore,  40  Neb.  686,  59  N.  W.  115.  50  Minn.  22,6,  52  N.  W.  899. 

56  57  Hun    (N.  Y.)    558,   19  Civ.  68146  Pa.  St.  328,  23  Atl.  370,  29 

Proc.  Rep.  177,  11  N.  Y.  Supp.  417,  W.  N.  C.  233,  22  Pitts.  L.  J.  N.  S. 

33  N.  Y.  S.  R.  354.  217,  1  Pa.  Adv.  R.  19. 


1086 


MORTGAGE    FORECLOSURES. 


[§  739 


titles  the  mortgagors  to  relief  against  a  personal  judgment  for 
a  deficiency. ^^ 

§  739.  Same — Service  of  process  by  publication. — In 

those  cases  where  process  in  a  mortgage  foreclosure  is  served 
by  publication  only,  no  valid  personal  judgment  can  be  entered 
for  deficiency. °°  Yet  it  is  said  that  a  deficiency  properly  as- 
certained in  a  foreclosure  suit  commenced  by  publication  of 
the  summons,  constitutes  a  subsisting  indebtedness  from  the 
mortgagor  so  served,  although  no  judgment  can  be  entered 
therefor." 


§  740.  Same — Death  of  mortgagor. — We  have  already 
seen  ^^  that  the  lien  of  a  mortgage  is  not  affected  by  the  death 
of  the  mortgagor,*^  but  the  mortgagee  or  party  holding  the 
mortgage  may  proceed  to  foreclose  the  same.  On  such  fore- 
closure the  estate  of  the  mortgagor  is  liable  for  any  defi- 
ciency.^* This  is  equally  true  where  the  mortgage  is  foreclosed 
by  the  executor,  under  leave  of  court,  for  the  payment  of 
debts;  ^*  but  no  judgment  for  deficiency  in  a  suit  to  foreclose 
the  same  can  be  rendered  against  the  heirs  or  personal  repre- 
sentatives,^® for  the  heirs,  administrators  and  widow  of  the 


59  Heim  v  Butin,  109  Cal.  500,  50 
Am.  St.  Rep.  54,  40  Pac  39,  42 
Pac.  138. 

60  Blumherg  v.  Birch,  99  Cal.  416, 
2,7  Am.  St.  Rep.  67,  34  Pac.  102. 

61  Blumberg  v.  Berch,  99  Cal.  416, 
37  Am.  St.  Rep.  67,  34  Pac.  102. 

62  See  ante,  §  280. 

63  A  power  of  sale  in  a  mortgage 
is  revoked  by  the  death  of  the  mort- 
gagor in  Georgia,  and  perhaps  else- 
where. Wilkins  V.  McGeJiec,  86  Ga. 
764,  13  S.  E.  84.    See  ante,  §  324- 

64  See  Pillow  v.  Santelle,  49  Ark. 
430,  5  S.  W.  783 ;  Culver  v.  Judges 
Superior  Court.  57  Mich.  25,  23 
N.    W.    469;    HiJ   v.    Townlcy,   45 


Minn.  167,  47  N.  W.  653;  Demuth 
V.  Kennedy  (N.  J.  Ch.)  13  N. 
J.  L.  J.  150;  Collier  v.  Miller,  62 
Hun  (N.  Y.)  99,  16  N.  Y.  Supp. 
633,  42  N.  Y.  S.  R.  66;  New  York 
Life  Insurance  Co.  v.  Aitkin,  58  N. 
Y.  Super.  Ct.  (26  Jones  &  S.)  586 
mem.,  11  N.  Y.  Supp.  349,  reversed 
in  125  N.  Y.  660,  26  N.  E.  732, 
36  N.  Y.  S.  R.  8;  Boardman  v. 
Dennaford,  23  N.  S.  529. 

65  Boardman  v.  Dennaford,  23  N. 
S.  529.  This  decision  was  by  a  di- 
vided court. 

66  In  Minnesota  it  is  said  the 
claim  therefor  must  be  presented, 
allowed,     and     enforced     as     other 


§    741]  JUDGMENT    FOR    DEFICIENCY.  1087 

deceased  are  not  personally  liable  for  the  mortgage  debt ;  " 
yet  a  judgment  for  the  deficiency  in  an  action  to  foreclose  a 
mortgage  made  by  a  testator  may,  under  the  New  York  Code,^' 
be  rendered  against  a  legatee  who  has  received  a  sum  from 
the  estate,  to  the  extent  of  tlie  amount  he  has  receivd.^^  It 
is  said  in  New  Jersey  that  a  decree  for  deficiency  entered  on 
foreclosure  cannot  be  enforced  against  heirs  by  execution  first 
issued  after  defendant's  death ;  a  bill  and  subpoena  being  nec- 

70 

essary. 

The  supreme  court  of  Alichigan,  in  the  case  of  Culver  v. 
Judges  of  Superior  Court,'^  say  the  rule  that  no  proceeding 
at  law  can  be  taken  to  enforce  payment  of  a  deficiency  on 
foreclosure,  without  leave  of  the  court  in  which  the  fore- 
closure was  had,  applies  only  to  remedies  upon  the  personal 
securities  given  with  the  mortgage,  and  not  to  an  action 
begun  by  leave  of  the  equity  court  upon  the  bond  of  the 
mortgagor's  residuary  legatee.  And  the  supreme  court  of 
New  York,  in  the  case  of  the  New  York  Life  Insurance 
Company  v.  Aitkin,'^  say  that  an  action  against  the  executor 
of  one  who  has  assumed  a  mortgage  on  premises  purchased 
cannot  be  maintained  to  recover  a  deficiency  on  foreclosure, 
where  the  executor  was  not  made  a  party  after  the  purchaser 
had  died  before  the  suit,  and  he  had  also  been  released  by  the 
immediate  grantor. 

§  741.  Judgment  for  deficiency  against  third  persons. — 

In  the  absence  of  a  statutory  provision  giving  the  court  author- 
ity therefor,  a  judgment  for  the  deficiency  arising  after  the 
application  of  the  proceeds  of  the  sale  of  the  mortgaged  prem- 
ises to  the  payment  of   the   debt  secured,   cannot  be   taken 

claims  against  the  estate  of  the  de-  ^^  Collier  v.  Miller,  62  Hun    (N. 

ceased  mortgagor.    Hill  v.  Townley,  Y.)  99,  16  N.  Y.  Supp.  633,  42  N. 

45  Minn.  167,  47  N.  W.  653.  Y.  S.  R.  66. 

^"^  Pillow  V.  Santelle,  A9  Krk.  AZQ,  ''O  Dcmuth    v.    Kennedy     (N.    J. 

5  S.  W.  783.  Ch.)  13  N.  J.  L.  J.  150. 

68  N.  Y.  Code  Civ.  Proc.  §§  1837-  'i  57  Mich.  25.  23  N.  W.  469. 

1841.  72  58  N.  Y.  Super.  Ct.   (26  Jones 


1088  MORTGAGE    FORECLOSURES.  [§    741 

against  any  person  liable  for  the  debt,  other  than  the  mort- 
gagor himself.'^  And  it  has  been  held  to  be  erroneous  to  ren- 
der a  judgment  against  a  person,  who  guaranteed  the  collec- 
tion of  a  note  secured  by  a  mortgage,  for  any  deficiency  which 
might  be  found  due  after  the  sale  of  the  mortgaged  premises ; 
the  holder  of  the  note  and  mortgage  must  exhaust  his  reme- 
dies against  the  mortgagor  and  the  mortgaged  property  before 
he  can  proceed  against  the  guarantor.'* 

A  grantor  of  lands,  the  title  to  which  is  taken  in  the  name 
of  only  one  of  the  grantees,  who  gives  his  note,  secured  by 
mortgage  on  the  lands  conveyed,  for  the  unpaid  purchase 
money,  is  restricted,  in  the  absence  of  fraud,  accident  or 
mistake,  to  the  security  so  taken,  and  cannot  recover  a  de- 
ficiency judgment  against  the  other  purchasers  who  did  not 
sign  the  note.'^ 

On  the  same  principle,  a  purchaser  of  part  of  mortgaged 
property,  who  has  never  assumed  any  personal  liability  for 
the  mortgage  debt,  is  not  liable  for  a  deficiency  on  a  fore- 
closure thereof.'''^  But  where  the  grantee  of  the  whole  or  a 
portion  of  the  mortgaged  premises  has  assumed  and  agreed  to 
pay  the  mortgage  debt  as  part  of  the  purchase  price  thereof, 
a  judgment  for  deficiency  may  be  rendered  against  him  equal- 
ly with  the  mortgagor;  and  where  such  judgment  is  not  award- 
ed in  the  decree  the  defect  may  be  remedied  by  amendment 
Thus  it  has  been  held  by  the  New  Jersey  court  of  chancery, 
in  the  case  of  Forman  v.  Manley,'''^  that  the  decree  in  fore- 
closure against  a  mortgagor  grantor  and  a  grantee  who  as- 
sumed   the    payment    of    the    mortgage,    may    be    amended 

&  S.)  586,  mem.  11  N.  Y.  Supp.  349,  53  N.  W-  978.     Compare  Reynolds 

reversed  in  125  N.  Y.  660,  26  N.  E.  v.  Diet2,  34  Neb.  265,  31  N.  W.  747. 

732,  36  N.  Y.  S.  R.  8.  See  post,  §  743. 

73  See  Doan  v.  Holly,  25  Mo.  357,  '6  Hall  v.   Young,  29  S.  C.  64,  6 

26  Mo.  186 ;  Faesi  v.  Goetz,  15  Wis.  S.  E.  938. 
231.  '^7 52  N.  J.  Eq.   (7  Dick.)  712,  29 

7*  Borden  v.  Gilbert,  13  Wis.  670.  Atl.  434.     See  Grand  Island  Sav.  & 

See  ante,  §  253.  L.  Assoc,  v.  Moore,  40  Neb.  686,  59 

1^  Reeves  v.  Wilcox,  35  Neb.  779,  N.  W.  115. 


§    741]  JUDGMENT    FOR   DEFICIENCY.  1089 

seventeen  years  after  it  was  rendered,  by  inserting  the 
clause  of  assumption;  and  the  execution  may  be  granted 
against  the  grantee  on  the  motion  of  the  mortgagor,  where 
both  defendants  were  served  with  process  and  notice  of  prayer 
for  decree  for  deficiency,  which  was  rendered,  and  it  does 
not  appear  that  the  grantee  had  rehed  on  the  defect  in  the  bill, 
or  will  be  prejudiced  by  the  proposed  amendment. 

In  some  states  the  only  remedy  against  a  third  person  liable 
for  a  mortgage  debt  for  the  deficiency  arising  upon  the  sale 
of  the  mortgaged  property,  is  by  a  separate  action  at  law  after 
the  deficiency  has  been  ascertained.  But  where  a  complaint 
improperly  joins  these  different  causes  of  action,  objection 
thereto  must  be  taken  by  action  or  demurrer  or  it  will  be 
deemed  to  have  been  waived;'*  if  no  objection  is  taken,  a 
decree  for  the  deficiency  may  be  entered,  although  not  ex- 
pressly authorized  by  statute.''^®  The  statutory  jurisdiction  for 
enforcing  the  collateral  obligations  of  third  persons  upon 
a  mortgage  foreclosure  is  permissive  and  not  obligatory,  and 
will  not  be  exercised  to  their  prejudice,  unless  they  have 
made  't  necessary  by  their  agreements.'" 

It  has  been  held,  that  mere  delay  in  foreclosing  a  mortgage, 
on  which  the  interest  has  been  regularly  paid,  if  there  has 
been  no  request  or  notice  to  foreclose,  will  not  charge  upon 
the  mortgagee  the  consequences  of  a  depreciation  in  the  value 
of  the  property,  and  will  not  relieve  persons  liable  for  the 
payment  of  the  mortgage  debt  as  sureties  from  the  effects  of 
a  judgment  of  deficiency. ^^ 

The  supreme  court  of  South  Carolina  say,  in  the  case  of 

''^McCarthy     v.     Gerraghty,     10  ^^  Gage    v.    Jenkinson,    58    Mich. 

Ohio  St.  438;  Baird  v.  McConkey,  169. 

20  Wis.  297;   Gary  v.   Wheeler,   14  ^'^  Merchants'  Ins.  Co.  of  the  City 

Wis.  281 ;  Jessop  v.  City  Bank   of  of  New  York  v.  Hinman,  34  Barb. 

Racine,    14    Wis.    331;    Stillwell   v.  (N.  Y.)   410,  13  Abb.    (N.  Y.)    Pr. 

Kellogg,  14  Wis.  461.  110.     See  Newcomb  v.  Hale,  90  N. 

79  McCarthy     v.     Gerraghty,     10  Y.  326,  43  Am.  Rep.  173. 
Ohio  St.  438;  Gary  v.   Wheeler,  14 
Wis.  281. 

Mortg.  Vol.  II.— 69. 


1090  MORTGAGE    FORECLOSURES.  [§    741 

Edwards  v.  Dargan,®^  that  a  mortgagee  in  possession  of  prop- 
erty is  not  liable  to  any  personal  judgment  in  favor  of  a 
junior  mortgage  in  an  action  by  the  latter  to  foreclose  the 
mortgage,  although  the  latter  may  be  entitled  to  foreclose 
because  the  property  is  insufficient  to  pay  both;  and  the  Illi- 
nois court  of  appeals,  in  the  case  of  McKenzie  v.  Hartford 
Life  and  Accident  Insurance  Company,*'  say  that  a  personal 
judgment  should  not  be  granted  against  the  surviving  hus- 
band and  the  heir-at-law  of  the  mortgagor,  in  a  suit  to  fore- 
close a  mortgage  to  secure  notes  not  signed  by  them,  in  the 
absence  of  proof  that  they  have  in  any  manner  become  liable 
for  the  payment  of  the  notes. 

It  is  thought  that  in  a  suit  by  a  trustee  substituted  in  the 
place  of  an  executor,  to  foreclose  a  mortgage  given  to  the 
latter  by  defendant,  judgment  cannot  be  rendered  against 
the  trust  estate  for  the  balance  above  the  mortgage  found  to 
be  due  to  the  defendant  for  services  rendered  the  executor 
for  the  estate,  in  the  absence  of  any  agreement  creating  a  lien 
on  the  estate.'* 

The  New  Jersey  court  of  errors  and  appeals  say  in  Dodd 
V.  Fisher,'^  that  a  person  who  deposits  a  sum  of  money  to 
obtain  a  postponement  of  a  foreclosure  sale  for  a  specified 
time,  and  to  indemnify  the  mortgagee  against  any  deficiency 
that  may  arise  on  the  sale,  is  not  discharged  from  liability 
by  the  advice  of  the  mortgagee's  counsel  to  the  sheriff  to 
let  a  bid  made  at  a  sale  stand  without  payment  of  a  per- 
centage thereof  as  required  by  the  conditions  of  sale,  and 
by  the  failure  of  such  bidder  to  take  the  property,  and  its 
subsequent  resale  at  a  smaller  price,  where  the  advice  was 
not  given  under  such  circumstances  as  to  indicate  a  disregard 
of  the  indemnifier's  rights. 

82  30  S.  C.  177,  8  S.  E.  858.  Stanton,  47  N.  Y.  S.  R.  422,  19  N. 

83  42  111.  App.  157.  Y.  Supp.  986. 
^*  United    States     Trust    Co.    v.  8531  Atl.  392. 


§  742] 


JUDGMENT    FOR    DEFICIENCY. 


1091 


§  742.  Deficiency  against  assignor  guaranteeing  pay- 
ment.— The  assignor  of  a  bond  and  mortgage,  who 
guarantees  their  payment,  will  be  liable  on  such  guaranty  for 
any  deficiency  that  may  arise  upon  a  foreclosure  and  sale.*^ 
While  a  person  who  has  guaranteed  the  collection  of  a  mort- 
gage is  a  proper  defendant  to  a  foreclosure,  yet  the  decree  of 
sale  in  such  a  case  should  provide  that  no  execution  shall  issue 
against  him  until  an  execution  against  the  parties  primarily 
liable  has  been  returned  unsatisfied ; "  such  a  guaranty  is 
merely  a  conditional  undertaking  to  pay  any  deficiency  that 
may  arise  on  foreclosure,  and  not  an  absolute  guaranty  to 
pay  the  debt."^ 

Where  a  guarantor  dies  pending  an  action  to  foreclose  a 
mortgage,  the  court  will  have  no  power  to  order  a  judgment 
for  deficiency  against  him  nunc  prO'  tunc,  for  the  mortgage 
debt;  it  will  be  necessary  to  revive  the  action  against  his  per- 
sonal representatives." 

Under  the  Wisconsin  statute,'"  where  a  joint  and  several 
guaranty  is  secured  by  the  mortgage  of  only  one  of  the  guar- 
antors, all  of  them  may  be  made  defendants  to  an  action  for 
the  foreclosure  of  the  mortgage,  and  a  personal  judgment 
may  be  obtained  against  them  for  any  deficiency.^^     Where, 


8^  Vanderbilt  v.  Schreyer,  91  N. 
Y.  392.  See  Officer  v.  Burchell,  AA 
N.  Y.  Supr.  Ct.  (12  J.  &  S.)  575; 
Rushmore  v.  Grade,  4  Edw.  Ch. 
(N.  Y.)  84;  Bristol  v.  Morgan,  3 
Edw.  Ch.  (N.  Y.)  142;  Jar  man  v. 
Wiswall,  24  N.  J.  Eq.  (9  C.  E-  Gr.) 
267.  Such  a  guarantor,  although 
only  conditionally  liable,  was  prior 
to  the  adoption  of  the  Code  of  Civil 
Procedure,  by  force  of  the  statute 
(2  N.  Y.  Rev.  Stat.  191,  §§  153, 
154),  properly  made  a  party  defend- 
ant in  an  action  to  foreclose  the 
mortgage,  and  judgment  therein 
against  him  for  a  deficiency  was 
properly    granted.       Vanderbilt    v. 


Schreyer,  91  N.  Y.  392.  See  ante, 
§§  253-256. 

®'  See  Harlem  Sav.  Bank  v. 
Mickelsburgh,  57  How.  (N.  Y.) 
Pr.  106;  Leonard  v.  Morris,  9 
Paige  Ch.  (N.  Y.)  90;  Curtis  v. 
Tyler,  9  Paige  Ch.  (N.  Y.)  432. 

88  Vanderbilt  v.  Schreyer,  91  N. 
Y.  392. 

^^  Grant  v.  Griswold,  82  N.  Y. 
569,  aflF'g  21  Hun  (N.  Y.)  509. 

90  Wis.  Rev.  Stat.  §  3156. 

See  also  Cottrell  v.  New  London 
Furniture  Co.  94  Wis.  176,  68  N.  W. 
874. 

91  Fon  du  Lac  Harrow  Co.  v. 
Haskins,  51  Wis.  135- 


1092  MORTGAGE    FORECLOSURES.  [§    743 

upon  the  sale  of  a  bond  and  mortgage,  the  assignor  guaran- 
tees their  payment,  he  will  not  necessarily  be  released  from 
his  liability  on  such  guaranty  by  the  failure  of  the  assignee 
to  comply  with  a  notice  requiring  him  to  collect  the  indebted- 
ness by  legal  proceedings,  although  the  property  may  have  de- 
preciated in  value  and  the  obligor  become  insolvent  after  the 
service  of  the  notice. ^^ 

Where  a  person  assigns  a  bond  and  mortgage,  guaranteeing 
their  collection,  and  thereby  places  himself  in  the  position  of 
a  surety  for  the  payment  of  the  debt,  and  subsequently,  for 
his  indemnity,  takes  the  bond  of  a  third  person  as  collateral 
security  for  such  payment,  the  principal  creditor  will,  in 
equity,  be  entitled  to  the  benefit  of  such  collateral  security; 
and  this  is  true,  though  he  may  not  originally  have  relied  upon 
the  credit  of  such  collateral  security,  nor  known  of  its  exist- 
ence. In  an  action  to  foreclose  the  mortgage,  the  obligor  on 
such  collateral  bond  may  properly  be  made  a  defendant,  to 
enable  the  plaintiff  to  obtain  a  decree  against  him  for  the 
payment  of  any  deficiency  which  may  remain  after  he  has  ex- 
hausted his  remedy  against  the  mortgagor.^^ 

Where  a  mortgagee,  upon  assigning  his  bond  and  mortgage, 
guarantees  their  payment,  the  extent  of  his  liability  in  case 
of  a  deficiency,  if  he  received  less  than  the  face  of  the  mort« 
gage,  will  be  limited  to  the  actual  amount  paid  for  the  bond 
and  mortgage  by  the  purchaser,  with  interest,  although  a 
larger  consideration  may  be  expressed  in  the  assignment.^* 

§  743.  Deficiency  against  party  assuming  mortgage. — 

Most  of  the  states  have  enacted  statutes,  giving  to  their  courts 
authority  to  render  personal  judgments  in  mortgage  foreclos- 
ures for  any  deficiency  arising  after  the  application  of  the 

^^Newcomb    v.    Hale,   90    N.    Y.  ^^Rapelye    v.    Anderson,    4    Hill 

326,  43  Am.  Rep.  173.  See  ante,  (N.  Y.)  472.  See  Goldsmith  v. 
§§  253-256.  Brown,  35  Barb.   (N.  Y.)   484. 

93  Curtis   V.    Tyler,   9    Paige    Ch. 
(N.  Y.)  432. 


§  743] 


JUDGMENT    FOR    DEFICIENCY. 


1093 


proceeds  of  tlie  sale  of  the  property  to  the  payment  of  the 
mortgage  debt;  under  such  statutes  a  judgment  for  deficiency 
may  be  rendered  against  the  mortgagor,  or  against  a  party 
who  has  assumed  the  payment  of  the  mortgage  debt,^*  or 
against  any  one  who  has  become  a  guarantor  or  surety  of  it,^^ 
or  who  has  given  a  collateral  undertaking  for  its  payment.^' 
The  supreme  court  of  Kansas,  in  the  case  of  the  Northwestern 


^5  Grand  Island  Sav.  &  Loan 
Assoc.  V.  Moore,  40  Neb.  686,  59  N. 
W.  115;  Forman  v.  Manley,  52  N.  J. 
Eq.  (7  Dick.)  712,  29  Atl-  434; 
Johns  V.  Wilson,  180  U.  S.  440,  21 
S.  Ct.  445  (Ariz).  See  Thompson 
V.  Cheesman,  15  Utah,  43,  48  Pac. 
477;  Flint  v.  Winter  Harbor  Land 
Co.  89  Me.  420,  36  Atl.  634;  Mar- 
shall V.  Davies,  78  N.  Y.  414;  Gif- 
ford  V.  McCloskey,  38  Hun  (N.  Y.) 
350;  Douglass  v.  Wells,  18  Hun  (N. 
Y.)  88;  Tuttle  v.  Armstcad,  53 
Conn.  175 ;  Bassett  v.  Bradley,  48 
Conn.  224;  Bay  v.  Williams,  112 
III.  91,  54  Am.  Rep.  209;  Birke  v- 
Abbott,  103  Ind.  1,  53  Am.  Rep.  474, 
1  N.  E.  485;  Wright  v.  Briggs,  99 
Ind.  563;  Ellis  v.  Johnson,  96  Ind. 
377;  Logan  v.  Smith,  70  Ind.  597; 
Gage  \-  Jenkinson,  58  Mich.  169; 
Unger  v.  Smith,  44  Mich.  22;  Fitz- 
gerald V.  Barker,  70  Mo.  685 ;  Heim 
V.  Vogel,  69  Mo.  529 ;  Bond  v.  Dol- 
by, 17  Neb.  491 ;  Cubberly  v.  Yager, 
42  N.  J.  Eq.  (15  Stew.)  289;  Vree- 
land  V.  VanBlarcom,  35  N.  J.  Eq. 
(8  Stew.)  530;  Allen  v.  Allen,  34 
N.  J.  Eq.  (7  Stew.)  493;  Trustees 
for  support  of  Public  Schools  v. 
Anderson,  30  N.  J.  Eq.  (3  Stew.) 
366 ;  Brewer  v.  Maurer,  38  Ohio  St. 
543,  43  Am.  Rep.  436 ;  Davis  v.  Hu- 
lett,  58  Vt.  90;  Palmcter  v.  Carey, 
63  Wis.  426.  See  also  Biddle  v. 
Pugh,  59  N.  J.  Eq.  480,  45  Atl.  626 ; 
Rabb  V.  Texas  Loan  &  Investment 


Co.  96  S.  W.  77  (Tex.  Civ.  App.)  ; 
Howard  v.  Robbins,  67  App.  Div. 
245,  72,  N.  Y.  Supp.  172.  See  ante, 
§§  238-252.  Where  a  party  pur- 
chases real  estate  and  assumes  to 
pay  one-half  of  certain  mortgages 
thereon,  he  is  a  proper  party  to  a 
foreclosure  of  one  of  the  mort- 
gages, but  he  is  liable  to  a  personal 
judgment  for  only  one-half  of  the 
mortgage  debt.  Logan  v.  Smith,  70 
Ind.  597. 

The  cases  on  this  point,  however, 
are  not  in  harmony.  Some  of  the 
courts  hold  that  no  action  lies  by 
the  mortgagee,  on  a  promise  made 
to  the  vendee  by  the  purchaser  of 
an  equity  of  redemption  to  assume 
and  pay  the  mortgage  on  the  land, 
as  part  of  the  consideration  named 
in  the  deed,  because  it  is  a  prom- 
ise to  a  third  person.  Mecch  v 
Ensign,  49  Conn.  191,  44  Am.  Rep 
225 ;  Wallace  v.  Furber,  62  Ind.  103 
Prentice  v.  Brimhall,  123  Mass.  291 
Booth  V.  Conn.  Mut.  Life  Ins.  Co 
43  Mich.  299;  Stuart  v.  Warden,  42 
Mich.  154.  But  see  Bassett  v.  Brad- 
ley, 48  Conn.  224. 

9^  Jones  V.  Steinbergh,  1  Barb.  Ch. 
(N.  Y.)  250;  Bristol  v.  Morgan, 
3  Edw.  Ch.  (N.  Y.)  142;  Jarman  v. 
Wiswall,  24  N.  J.  Eq.  (9  C.  E.  Gr.) 
267.  See  also  Sauer  v.  Steinbauer, 
14  Wis.  70. 

^T  Halsey  v.  Reed,  9  Paige  Ch. 
(N.  Y.)  446. 


1094  MORTGAGE    FORECLOSURES.  [§    743 

Barb-Wire  Company  v.  Randolph,®'  say  that  a  personal  judg- 
ment is  properly  rendered  in  a  mortgage  foreclosure  against 
a  grantee  of  land  who  assumed  to  pay  certain  mortgages,  and 
conveyed  the  land  by  warranty  deed  to  one  who  executed 
a  subsequent  mortgage  to  the  holders  of  the  former,  for  the 
amount  of  the  mortgages  assumed;  and  the  proceeds  of  such 
judgment  should  be  applied  upon  the  mortgages  assumed, 
to  protect  both  the  person  to  whom  the  covenant  was  made 
and  the  grantee  with  warranty.  The  supreme  court  of  Ne- 
braska say,  in  the  case  of  Reynolds  v.  Dietz,®'  that  upon  fore- 
closure of  a  mortgage  upon  land  sold  to  several  persons  who 
each  advance  a  portion  of  the  consideration,  taking  title  in 
the  name  of  one  in  trust  for  the  others  and  assuming  the 
mortgage  by  making  it  part  of  the  consideration,  each  of  the 
persons  advancing  part  of  the  consideration  is  liable  for  his 
proportion  of  the  deficiency,  according  to  the  share  owned  by 
him,  and  no  more.^ 

The  mortgagee  may  also  manitain  an  action  at  law  against 
any  such  party  whenever  the  attending  circumstances  justify 
the  conclusion  that  the  promise  was  made  for  his  benefit.^ 
But  a  mortgagee's  right  to  proceed  in  equity  against  one 
who  has  assumed  to  pay  his  mortgage,  does  not  extend  to  a 
claim  for  the  purchase  money  on  a  sale  of  the  mortgaged 
premises,  nor  to  the  vendor's  lien  to  secure  it.'  Where  a 
person  purchases  mortgaged  premises,  assuming  and  agree- 
ing to  pay  the  mortgage  debt  as  a  part  of  the  consideration 
of  the  conveyance,  he  thereby  merely  agrees  to  pay  his  own 
debt  to  a  third  person,   who,   by  an   equitable   subrogation, 

98  47  Kan.  420,  28  Pac.  170.  unpaid  purchase  money,  in  the  ab- 

9934  Neb.  265,  51   N.  W.  747.  sence  of  fraud,  accident  or  mistake, 

1  Compare:  Reeves  v.  Wilcox,  35  the  grantor  is  restricted  in  his  judg- 

Neb.  779,  53  N.  W.  978,  in  which  ment  for  deficiency  to  the  purchaser 

the  court  held  that  where  the  title  who  signed  the  note. 

to   lands   is  taken   in  the  name  of  2  Bassett  v-  Bradley,  48  Conn.  224. 

only  one  of  the  grantees  who  gives  '  Emley  v.  Mount,  32  N.  J.  Eq. 

his  individual  note,  secured  by  mort-  (5  Stew.)  470. 

gage  on  the  lands  conveyed,  for  the 


§    743]  JUDGMENT    FOR    DEFICIENCY.  1095 

Stands  in  the  place  of  the  promisee  vendor.*  In  those  cases 
where  the  mortgagor  sells  the  equity  of  redemption  subject 
to  the  mortgage,  and  the  purchaser  assumes  and  agrees  to 
pay  the  mortgage  debt  as  a  portion  of  the  purchase  money, 
the  grantee  becomes  personally  liable  for  the  payment  of  the 
debt  in  the  first  instance;  if  the  mortgagor  is  subsequently 
compelled  to  pay  such  debt,  he  may  recover  it  from  his  gran- 
tee in  an  action  in  equity  or  at  law.^ 

While  one  who  takes  a  deed  of  mortgaged  land  will  be 
personally  liable  on  the  foreclosure  of  the  mortgage,  if  his 
deed  expressly  binds  him  to  pay  the  debt,^  yet  a  co\enant  to 
pay  cannot  be  implied  from  either  the  deed  or  the  mortgage.' 
Where  a  purchaser  accepts  and  holds  under  a  deed  contain- 
ing a  clause  reciting  that  he  assumes  and  agrees  to  pay  a  note 
secured  by  an  existing  mortgage  on  the  land,  he  thereby  sub- 
jects himself  to  a  liability  for  a  personal  judgment  for  any 
deficiency  that  may  exist  after  the  sale  of  the  premises  under 
a  decree  of  foreclosure;  and  such  liability  may  be  enforced 
on  the  foreclosure.® 

^Bassett    v.    Bradley,    48    Conn.  wick,  100  N.  Y.  628;  Gage  v.  Jen- 

224.     See  ante,  §§  238-252.  kinson,  58  Mich.  169. 

6  Comstock  V.  Drohan,  71   N.  Y.  «  Gifford   v.   McCloskey,  38  Hun 

9;  Hartley  v.  Harrison,  24  N.  Y.  (N.  Y.)  350;  Bay  v.  Williams,  112 

170;  Russell  v.  Pistor,  7  N.  Y.  171,  111.  91,  54  Am.  Rep.  209;  Scarry  v. 

57  Am.  Dec.  509;  Cornell  v.  Pres-  Eldridge,    63    Ind.    44;     Unger    v. 

cott,  2  Barb.  (N.  Y.)   16;  Ferris  v.  Smith,    44    Mich.    22;     Winans    v. 

Crawford,   2    Den.    (N.    Y.)    595;  Wilkie,  41  Mich.  265;  Carley  v.  Fox, 

TJmyer  v.  Marsh,  11  Hun  (N.  Y.)  38  Mich.  387;  Miller  v.  Thompson, 

501;  Marsh  v.  Pike,   10   Paige  Ch.  34  Mich.  10;  Crawford  v.  Edwards 

(N.    Y.)    595;    Halsey   v.    Reed,   9  33  Mich.  360;  Fitzgerald  v.  Barker, 

Paige   Ch.    (N.   Y.)    447;   Blyer  v.  70  Mo.  685;  Heint  v-  Vogel,  69  Mo 

Monholland,  2  Sandf.  Ch.   (N.  Y.)  529;   Davis  v.   Hulett,   58   Vt.  90: 

478.      As    to    the    liability    of    the  Gibson  v.  Hambleton,  52  Neb.  601 

grantee  of  a  grantee,  see  Marsh  v.  72  N.  W.  1033;  Windle  v.  Hughes 

Pike,  10  Paige  Ch.  (N.  Y.)  595.  40  Or.   1,  65   Pac.   1058;  Fisher  v 

^  Ranney  \.  McMullen,  S  Ahh.  (N.  White,  94  Va.  236,  26  S.  E.  573- 

Y.)  N.  C.  246;  Wales  v.  Sherwood,  In  Lea  v.  Rabbri,  45  N.  Y.  Supr. 

52  How.  (N.  Y.)   Pr.  413.  Ct.   (13  J.  &  S.)   361,  it  was  held 

'*  Equitable  Life  Ins.  Co.  v.  Bost-  that  where  premises  were  conveyed, 


1096 


MORTGAGE    FORECLOSURES. 


[§  744 


§  744.  Mortgaged  premises  primary  fund — Subsequent 
liability. — Where  mortgaged  premises  are  sold  to  a  per- 
son who  takes  them  subject  to  a  mortgage  and  assumes  and 
agrees  to  pay  the  mortgage  debt  as  a  part  of  the  consideration 
for  the  conveyance,  the  mortgaged  premises  are  the  primary 
fund  for  the  paym.ent  of  the  mortgage  debt,^  and  thereafter, 
the  party  purchasing  will  be  liable,^"  and  his  grantor,  the  orig- 
inal mortgagor,  will  stand  in  the  position  of  a  surety  to  such 
defendant.^^  The  obligation  of  the  purchaser  inures  in  equity 
to  the  benefit  of  the  holder  of  the  mortgage, ^^  who,  upon  fore- 
closure, is  entitled  to  a  judgment  against  such  purchaser  for 
any  deficiency  which  may  exist  after  the  application  of  the 
proceeds  of  the  sale  to  the  mortgage  debt.^^ 


"subject  to  a  certain  mortgage  on 
the  southerly  portion  of  the  same" 
made  by  the  vendor,  which  mort- 
gage the  vendee  assumed  and 
agreed  to  pay,  by  a  clause  in  the 
conveyance,  which  stated  that  the 
amount  of  the  debt  has  "been  de- 
ducted from  the  consideration  here- 
inbefore expressed,"  there  is  no 
equitable  lien  upon  the  mortgaged 
premises  in  favor  of  the  vendor; 
this,  though  the  vendee,  after  pay- 
ing interest  for  a  certain  time, 
makes  default,  and  allows  the  mort- 
gage to  be  foreclosed  and  the 
vendor  to  be  thereby  charged  with 
a  judgment  for  deficiency.  The  as- 
sumption of  the  mortgage  is  pro 
tanto  the  consideration.  A  fortiori, 
there  is  no  equitable  lien  upon  that 
portion  of  the  premises  not  covered 
by  the  mortgage.  See  ante,  §§  238- 
252. 

^  Boucofski  V.  Jacobsen,  36  Utah, 
165,  26  L.R.A.(N.S.)  898,  104  Pac. 
117;  Birke  v-  Abbott,  103  Ind.  1, 
53  Am.  Rep.  474,  1  N.  E.  485.  And 
this  is  true,  although  the  deed  maj' 


contain  a  covenant  on  the  part  of 
the  grantee  to  pay  the  mortgage 
debt,  such  covenant  being  intend- 
ed to  indemnify  the  grantor  against 
the  contingency  that  the  land  may 
not  bring  enough  to  pay  such  debt. 
Wilbur  V.   Warren,   104  N.  Y.   192. 

10  Ellis  V.  Johnson,  96  Ind.  2,77. 

^^  Drury  v.  Clark,  16  How.  (N. 
Y.)  Pr.  424.  See  ante,  §  223  and 
chap.  XI. 

12  Wager  v.  Ling,  150  N.  Y.  549, 
44  N.  E.  1103.  See  also  Eakin  v. 
Shults,  61  N.  J.  Eq.  156,  47  Atl. 
274. 

13  See  Ricard  v.  Sanderson,  41  N. 
Y.  179;  Ranney  v.  McMullen,  5 
Abb.  (N.  Y.)  N.  C.  246;  Thayer  v. 
Marsh,  11  Hun  (N.  Y.)  501,  aff'd 
75  N.  Y.  340;  Comstock  v.  Drohan, 
8  Hun  (N.  Y.)  372>,  afif'd  71  N.  Y. 
9;  Halsey  v.  Reed,  9  Paige  Ch.  (N. 
Y.)  446;  Stiger  v.  Mahone,  24  N- 
J.  Eq.  (9  C.  E.  Gr.)  426;  Hoy 
V.  Bramhall,  19  N.  J.  Eq.  (4  C.  E. 
Gr.)  563,  97  Am.  Dec.  687;  Klap- 
worth  V.  Dressier,  13  N.  J.  Eq.  (2 
Beas.)  62,  78  Am.  Dec.  69. 


§    745]  JUDGMENT    FOR    DEFICIENCY.  1097 

But  where  a  mortgagor  sells  the  mortgaged  premises,  re- 
ceiving the  full  consideration  therefor,  and  his  conveyance  is 
not  made  subject  to  tiie  payment  of  the  mortgage,  he  will 
remain  the  principal  debtor,  and  the  land  simply  security 
for  the  debt,  although  the  deed  may  contain  no  covenant  of 
title  on  the  part  of  the  grantor."  In  an  action  to  foreclose 
a  mortgage,  where  more  than  one  party  is  personally  liable 
for  the  payment  of  the  mortgage  debt,  the  judgment  should 
provide  for  issuing  an  execution  for  the  deficiency  against  the 
several  defendants  in  the  order  in  which  they  are  liable  as 
principal  or  surety." 

§  745.  Assumption  of  mortgage — Defense  by  gran- 
tee.— The  purchaser  of  mortgaged  premises,  who  assumes 
the  payment  of  the  mortgage  as  a  part  of  the  consideration  of 
the  conveyance,  is  liable  to  the  mortgagee  and  is  a  proper 
party  to  foreclose  under  the  Code ;  ^®  he  is  estopped  from 
contesting  the  validity  of  the  mortgage,  and  will  be  liable  tc 
his  grantor  if  the  latter  is  compelled  to  pay  any  part  of  the 
mortgage  debt."  Proof  of  the  recorded  deed  containing  such 
covenants  raises  the  presumption  that  the  title  is  vested  in 
the  grantee  and  that  he  is  liable." 

The  grantor  cannot,  by  any  act  or  agreement  of  his  own, 
release  or  affect  his  grantee's  liability  to  the  mortgagee,  ex- 
cept where  an  oral  agreement  is  made  contemporaneously 
with  the  conveyance  in  which  the  grantee  assumed  the  mort- 
gage, to  the  effect  that  the  grantor  will,  at  any  time,  accept 
a  reconveyance  and  release  the  grantee  from  his  covenant; 

1*  Wadsivorth  v.  Lyon,  93  N.  Y.  ^"^  Parkinson   v.    Sherman,   74   N. 

201,   45   Am.   Rep.   190.  Y.  88,  30  Am.  Rep.  268;  Comstock 

^^Luce  V.  Hinds,  Clarke  Ch.  (N.  v.   Drohan,   71    N.   Y.  9;   Fair  child 

Y.)  453;  Weed  v.  Calkins,  24  Hun  v.  Lynch,  46  N.  Y.  Supr.  Ct.  (14  J. 

(N.    Y.)    582;    Curtis   v.    Tyler,   9  &  S.)   1;  Thayer  v.  Marsh,  11  Hun 

Paige   Ch.   (N.  Y.)   432,  435.     See  (N.    Y.)    501.     See   ante,   §§   238- 

ante,  §  223  and  chap.  xi.  252. 

16  N.  Y.  Code  Civ.  Proc.  §  1627 ;  ^^  Lawrence   v.   Farley,    24    Hun 

Ayers  V.  Dixson,  78  N.  Y.  318.  (N.  Y.)  293. 


1098 


MORTGAGE    FORECLOSURES. 


[§  746 


and  where  such  a  verbal  agreement  has  been  carried  out,  the 
HabiHty  of  the  grantee  on  the  mortgage  will  be  extinguished.^' 
A  grantee  who  assumes  the  payment  of  a  mortgage  will  be 
deemed  to  have  entered  into  an  express  undertaking  to  pay  the 
debt,  although  he  may  not  sign  but  merely  accept  the  deed 
by  which  the  conveyance  is  made.^° 

§  746.  Assumption  of  mortgage — When  grantee  not 
liable  for  deficiency. — Where  a  grantee  has  assumed  the 
payment  of  a  mortgage,  he  will  not  be  liable  for  a  judgment 
of  deficiency  unless  his  grantor  was  liable.^^  Where  a  deed 
contains  a  covenant  that  the  grantee  shall  pay  the  mortgage 
on  the  property,  an  extension  of  the  time  of  payment  by  the 
holder  of  the  mortgage  will  discharge  the  grantor ;  ^^  and  when 
the  mortgagee  releases  the  grantee,  he  will  thereby  discharge 
the  mortgagor  also  from  liability.^' 


^^  Devlin  v.  Murphy,  5  Abb.  (N. 
Y.)  N.  C.  242,  56  How.  (N.  Y.)  Pr. 
326. 

^'^  Smith  V.  Truslow,  84  N.  Y. 
660;  Atlantic  Dock  Co.  v.  Leavitt, 
54  N.  Y.  35,  13  Am.  Rep.  556; 
Ricard  v.  Sanderson,  41  N.  Y.  179; 
Belmont  v.   Coman,  22   N.   Y.  438, 

78  Am.  Dec.  213;  Collins  v.  Rowe, 
1  Abb.  (N.  Y.)  N.  C.  97;  Marsh 
V.  Pike,  10  Paige  Ch.  (N.  Y.)  595; 
Furnas  v.  Durgin,  119  Mass.  500, 
20  Am.  Rep.  341 ;  Miller  v.  Thomp- 
son, 34  Mich.  10;  Taylor  v-  Preston, 

79  Pa.  St.  436.  See  ante,  §§  250- 
251. 

21  Cashman  v.  Henry,  75  N.  Y. 
103,  31  Am.  Rep.  437 ;  Vrooman  v. 
Turner,  69  N.  Y.  280,  25  Am.  Rep. 
195;  Smith  v.  Cross,  16  Hun  (N. 
Y.)  487;  Norwood  v.  DeHart,  30 
N.  J.  Eq.  (3  Stew.)  412;  Jenkins 
V.  Bishop,  136  App.  Div.  104,  120 
N.  Y.  Supp.  825 ;  Eakin  v.  Shultz, 
61  N.  J.  Eq.  156,  47  Atl.  274 ;  New 
England  Trust  Co.  v.  Nash,  5  Kan. 


App.  739,  46  Pac.  987;  Morris  v. 
Mix,  4  Kan.  App.  654,  46  Pac.  58; 
Hicks  V.  Hamilton,  144  Mo.  495,  66 
Am.  St.  Rep.  431,  46  S.  W.  432. 
See  Williams  v.  VanGeison,  76  App. 
Div.  592,  79  N.  Y.  Supp.  95.  See 
also  Bonhoff  v-  Wiehorst,  57  Misc. 
456,  108  N.  Y.  Supp.  437.  But  see 
Cobb  V.  Fishel,  15  Colo.  App.  384, 
62  Pac.  625. 

22  Spencer  v.  Spencer,  95  N.  Y. 
353;  Marshall  v.  Davies,  78  N.  Y. 
414,  reversing  16  Hun  (N.  Y.)  606; 
Calvo  V.  Davies,  12>  N.  Y.  211,  aff'g 
8  Hun  (N.  Y.)  222,  29  Am.  Rep. 
130.  See  Knoblock  v.  Zschwefckc, 
53  N.  Y.  Supr.  Ct.  (21  J.  &  S.) 
391,  1  N.  Y.  State  Rep.  238. 

^^  Paine  v.  Jones,  76  N.  Y.  274, 
afif'g  14  Hun  (N.  Y.)  577;  Riggs 
V.  Boucicault,  33  Hun  (N.  Y.)  667, 
20  N.  Y.  Wk.  Dig.  184.  See  Wood- 
ward V.  Brown,  119  Cal.  283,  63 
Am.  St.  Rep.  108,  51  Pac.  542.  See 
ante,  §§  238-252. 


§    747]  JUDGMENT    FOR    DEFICIEXCY.  1099 

It  has  been  held,  however,  that  one  liable  for  the  deficiency 
will  not  be  released  because  the  time  for  completing  the  sale 
was  extended  and  a  resale  subsequently  ordered,  without 
proceeding  against  the  original  purchaser  to  compel  him  to 
complete  his  purchase,  if  it  does  not  appear  that  the  purchaser 
was  personally  responsible  and  that  his  bid  could  have  been 
enforced.  Neither  will  he  be  released  where  it  does  not  ap- 
pear that,  if  the  resale  had  been  ordered  immediately,  the 
mortgaged  premises  would  have  brought  more;  particularly 
is  this  true  where  no  fraud  was  practiced  and  no  request  was 
made  that  the  purchaser  should  be  proceeded  against, — for 
the  plaintifif  in  a  foreclosure  may  elect  to  apply  for  a  resale 
or  to  compel  the  purchaser  to  complete  his  purchase.^* 

It  has  been  held,  where  a  grantee  takes  a  conveyance  by  a 
warranty  deed  containing  a  covenant  to  pay  the  mortgage, 
and  he  is  subsequently  evicted  by  a  paramount  title,  that  he 
will  not  be  liable  on  a  judgment  for  deficiency,  because  the 
consideration  for  the  covenant  has  wholly  failed.^*  And  in 
an  action  to  foreclose  a  mortgage,  parol  evidence  is  admissible 
to  show  that  the  clause  in  a  deed,  whereby  the  grantee  as- 
sumes the  mortgage,  was  inserted  by  mistake  and  without  the 
knowledge  of  such  grantee. ^^  And  where  the  grantee  in  a 
conveyance  containing  such  a  clause,  was  unable  to  produce 
the  evidence  that  the  clause  was  inserted  by  mistake  and  al- 
lowed judgment  to  be  taken  against  him  by  default,  but  two 
years  later  found  the  evidence,  the  judgment  was  opened  on 
motion  and  he  was  allowed  to  come  in  and  defend.^' 

§  747.  Release  from  liability  on  assumption. — Whether 

the  personal  liability  incurred  by  the  grantee  to  the  holder  of 
a  mortgage,  by  assuming  its  payment,  can  be  released  by  a  sub- 

2*  Goodwin  v.  Simonson,  74  N.  Y.  *^  DeyErtnand  v.  Chamberlain,  88 

133.  N.  Y.  658.     See  ante,  §§  238-252. 

25  Dunning  v.   Leavitt,  85   N.   Y.  27  Trustees,    &c.   v.    Merriam,   59 

30,  39  Am.  Rep.  617,  reversing  20  How.  (N.  Y.)  Pr.  226.  See  also 
Hun  (N.  Y.)   178.  Union   Dime  Saving   Institution   v. 

Clark,  59  How.  (N.  Y.)  Pr.  342. 


1100  MORTGAGE    FORECLOSURES.  [§    74? 

sequent  agreement  l^etween  such  grantee  and  his  grantor,  is 
an  unsettled  question.^®  Thus,  it  is  held  in  New  Jersey,  that 
the  covenant  by  a  grantee  to  pay  the  mortgage  debt  is  a  con- 
tract only  for  the  indemnity  of  the  grantor,  and  may  be  re- 
leased or  discharged  by  him ;  '^^  but  that  a  release  given  with- 
out consideration  by  an  insolvent  grantor,  after  notice  of  fore- 
closure, and  for  the  sole  and  admitted  purpose  of  defeating 
the  mortgagee's  claim  for  a  judgment  of  deficiency,  is  void 
in  equity.^" 

On  the  other  hand,  it  has  been  held  in  Illinois  ^^  and  in 
New  York,^"^  that  such  an  agreement  to  pay  the  mortgage 
debt,  creates  an  absolute  and  irrevocable  obligation  in  favor 
of  the  mortgagee,  which  cannot  be  released  or  affected  by  any 
act  or  agreement  of  the  mortgagor  or  the  grantee  to  which 
the  mortgagee  does  not  assent ;  in  other  cases,  it  is  held  that 
such  an  agreement  becomes  irrevocable  only  after  it  has  been 
accepted  and  acted  upon  by  the  mortgagee.'^ 

Where  a  grantee,  who  has  assumed  the  payment  of  a  mort- 
gage, subsequently  reconveys  the  land  in  good  faith  to  his 
grantor,  who  in  turn  assumes  the  payment  of  such  debt,  the 
liability  of  the  first  grantee  to  the  holder  of  the  mortgage  will 
be  thereby  terminated.^* 


28  See  Judson  v.  Dada.  79  N.  Y.  port  of  Public  Schools,  31  N.  J.  Eq. 
373;  Hartley  v.  Harrison,  24  N.  Y.  (4  Stew.)  290.    See  ante,  §  251. 
170;  Douglass  V.  Wells,  18  Hun  (N.  ^o  Trustees    for    the    support    of 
Y.)    88;   Stephens  v.    Casbacker,  8  Public  Schools  v.  Anderson.  30  N. 
Hun  (N.  Y.)  116;  Bay  v.  Williams,  J.  Eq.   (3  Stew.)  366. 

112  III.  91,  54  Am.  Rep.  209;  Berk-  ^^  Bay  v.  Williams,  112  111.  91,  54 

shire   Life   Ins.   Co.   v.    Hutchings,  Am.  Rep.  209. 

100  Ind.  496;  Young  v-  Trustees  for  ^^ Douglass  v.  Wells,  18  Hun  (N. 

the  support  of  Public  Schools,  31  Y.)   88.     See  ante,  §§  250,  251. 

N.  J.  Eq.    (4  Stew.)  290;  Trustees  ^^  See  Berkshire  Life  Ins.  Co.  v. 

for  the  support  of  Public  Schools  Hutchings,  100  Ind.  496;  Brewer  v. 

V.  Anderson,  30  N.  J.  Eq.  (3  Stew.)  Maurcr.   38   Ohio   St.   543,  43   Am. 

366;  Brewer  v.  Maurer,  38  Ohio  St.  Rep.  436. 

543,  43  Am.  Rep.  436.  ^^  Laing   v.   Bryne,  34  N.   J.   Eq. 

29  Young  v.  Trustees  for  the  sup-  (7  Stew.)  52.     But  see  ante.  §  252. 


§    748]  JUDGMENT    FOR    DEFICIENCY.  1101 

§  748.  No  liability  where  deed  subject  to  mortgage. — 

It  is  well  settled  that  the  acceptance  of  a  conveyance  con- 
taining words  importing  that  the  grantee  will  pay  the  mort- 
gage, which  is  a  lien  upon  the  premises  purchased,  binds  him 
to  discharge  such  incumbrance  as  effectually  as  though  he 
had  signed  the  deed.  No  express  or  formal  words  are  neces- 
sary to  create  this  obligation,  as  the  liability  depends  entirely 
upon  the  agreement  of  the  parties ;  ^*  yet  the  mere  fact  that  the 
the  grantee  purchases  subject  to  the  mortgage,  and  that  a 
clause  to  that  effect  was  inserted  in  the  deed,  will  not  alone 
render  the  grantee  personally  liable  for  the  mortgage  debt 
nor  create  such  liability ;  the  words  used  must  clearly  show  that 
such  obligation  was  intended  by  the  one  party  and  knowingly 
assumed  by  the  other. ^^ 

As  between  the  mortgagor  and  his  grantee,  the  latter  is 
secondarily  liable  for  the  whole  mortgage  debt,  the  land  con- 
veyed being  primarily  liable.^'  A  grantee  purchasing  mort- 
gaged premises  subject  to  the  incumbrance,  not  being  person- 
ally liable  for  the  debt,  will  simply  lose  the  premises  in  case 
of  foreclosure,^*  because  in  such  case  the  land  is  the  primary 
fund  for  the  payment  of  the  debt,  and  must  be  so  applied. ^^ 

The  most  that  can  be  claimed  for  the  words  "under  and 
subject  to"  in  a  conveyance  of  land,  is  that  as  between  the 
parties,  they  create  a  covenant  of  indemnity  to  the  grantor  on 

^^  Belmont  v.   Coman,   22   N.    Y.  Woodbury  v.  Swan,  58  N.  H.  380; 

438,  78  Am.  Dec.  213.  Walker  v.  Goldsmith,  7  Oreg.   161. 

36  Equitable  Life  Assurance  Soc.  See  ante,  §§  238-252. 

V.  Bostwick,  100  N.  Y.  628;  Smith  ^t  Moore  v.   Clark,  40  N.  J.   Eq. 

V.  Truslow,  84  N.  Y.  660;  Collins  v.  (13  Stew.)   152. 

Rowe.  1  Abb.    (N.  Y.)    N.  C.  97;  38  fj//„a„^  v.  fFt7^i>,  41  Mich.  264. 

Johnson  v.  Monell,   13   Iowa,   300;  ^^  Johnson   v.    Corbett,    11    Paige 

Fiske  V.  Tolnian,  124  Mass.  254.  26  Ch.  (N.  Y.)  265;  Halsey  v.  Reed,  9 

Am.  Rep.  659;  Strong  v.  Converse.  Paige   Ch.    (N.   Y.)    446;   Forgy  v. 

90  Mass.  (8  Allen)  557,  85  Am.  Dec.  Merryman,  14  Neb.  516.     See  Rob- 

732;   Hall  v.   Morgan,  79   Mo.  47;  erts   v.    Fitzallen.    120  Cal.   482,   52 

Lawrence  v.   Towle,  59  N.  H.  28;  Pac.   818. 


1102  MORTGAGE    FORECLOSURES.  [§    749 

the  part  of  the  grantee.*"  Yet  it  is  said  that  where  a  purchaser 
buys  mortgaged  premises  from  the  mortgagor  subject  to  the 
mortgage  debt,  though  the  deed  may  not  in  terms  bind  him 
to  pay  such  debt,  he  is  to  be  treated,  as  between  himself  and 
the  mortgagor,  as  having  assumed  the  mortgage,  and  is  per- 
sonally liable  for  whatever  deficiency  may  remain  after  the 
foreclosure  sale." 

§  749.  Oral  contract  of  assumption  may  be  enforced. — 

Where,  at  the  time  of  conveying  land,  it  is  orally  agreed 
that  the  grantee  shall  assume  and  pay  a  mortgage,  for  the 
payment  of  which  the  grantor  is  liable,  the  latter  may,  if  sub- 
sequently compelled  to  pay  it,  recover  the  amount  so  paid 
from  the  grantee,  though  the  conveyance  contains  no  agree- 
ment on  the  part  of  the  grantee  to  assume  the  mortgage,  but  is 
only  made  subject  to  it.**^  The  grantee,  however,  may  so  con- 
tract with  his  grantor  as  to  make  himself  personally  liable 
to  the  mortgagee.  Thus,  where  the  amount  of  the  mortgage 
debt  forms  a  part  of  the  consideration  of  the  purchase,  and 
by  the  contract  is  to  be  paid  by  the  purchaser,  he  will  be  per- 
sonally liable  where  he  has  retained  that  amount  out  of  the 
purchase  money.*' 

But  the  deduction  of  the  amount  of  the  mortgage  debt 
from  the  purchase  price  on  a  sale  of  the  land,  in  the  absence 
of  an  express  agreement  to  pay,  does  not  impose  upon  the 
grantee  the  absolute  duty  of  paying  the  mortgage  debt. 
While  such  deduction  may  be  evidence  of  the  grantor's  in- 
tention to  subject  the  land  to  such  payment,  it  is  not  con- 

^0  Taylor  v.  Mayer,  93  Pa.  St.  42.  not  made  full  payment,  he  may  be 

See  Samuel  v.  Peyton,  88  Pa.   St.  held  for  such  sums  as  remain  due 

465,  also  ante,  §  254  and  post,  §  750.  after   he   has   been   notified   of   the 

*^  Canfield  v.  Shear,  49  Mich.  313.  complainant's  equities. 

It  was  held  by  the  supreme  court  of  *2  Taintor    v-    Hemmingway,    18 

Michigan  in  Sheldon  v.  Holmes,  58  Hun  (N.  Y.)  458. 

Mich  138,  that  on  the  dismissal  of  a  *3  Smith    v.    Truslow,    84    N.    Y. 

bill  of  foreclosure  against  a  subse-  660;    Winans   v.    IVilkie,   41    Mich, 

quent  bona  fide  purchaser  who  has  264.    See  ante,  §  254. 


§    750]  JUDGMENT    FOR    DEFICIENCY.  1103 

trolling  nor  conclusive,  and  it  may  be  inferred  that  the  deduc- 
tion was  made  to  protect  the  grantee  against  an  actionable 
incumbrance.** 

§  750.  Intention  of  parties  determines  question  ot 
assumption, — Whether  a  personal  liability  is  assumed  in 
any  case  is  always  dependent  on  the  intention  of  the  parties ; 
unless  the  parties  have  declared  this  intention  in  express  words 
no  liability  will  be  incurred."  If  the  deed  merely  recites  that 
the  land  is  taken  subject  to  a  certain  mortgage,  there  will  be 
no  personal  liability ;  *®  neither  will  the  words  "under  and 
subject"  to  a  mortgage  which  is  specified,  import  a  promise  to 
pay,  nor  create  a  personal  liability.*'  And  even  the  words 
"each  assumed  to  pay  the  mortgage"  have  been  held  to  create 
no  personal  liability.*® 

In  those  cases  where  there  are  words  in  the  deed  import- 
ing that  the  grantee  is  to  pay  the  mortgage,  subject  to  which 
he  takes  the  land,  he  will  be  deemed  to  have  entered  into 
an  express  undertaking  to  do  so  by  the  mere  acceptance  of 
the  deed,  and  by  taking  possession  of  the  property  under  it.** 

The  grantee  of  mortgaged  premises  will  be  liable  for  the 
payment  of  the  mortgage  debt  only  where  such  liability  was 
a  part  of  the  bargain  for  the  sale  and  conveyance  of  such 

^*  Bennett  v.  Bates,  94  N.  Y.  354-  land  Savings  Bank  v.  White,  4  Kan. 

45  See   Rutland   Savings   Bank   v.  App.  435,  46  Pac.  29. 

White,  4  Kan.  App.  435,  46  Pac.  29;  ^^  Ricard  v.  Sanderson,  41  N.  Y. 

Blass  V.    Terry,   156  N.  Y.   122,   50  179;  Belmont  v.  Coman,  22  N.  Y. 

N.  E.  953.  438.  78  Am.  Dec.  213;  Lawrence  v. 

*^  Belmont   v.   Coman,   22   N.    Y.  Fox,    20    N.    Y.    268;     Trotter    v. 

438,  78  Am.  Dec.  213;  Hull  v.  Alex-  Hughes,  12  N.  Y.  74,  62  Am.  Dec 

ander,  26  Iowa,  569.  137;    Vail  v.  Foster,  4  N.  Y.  312; 

*''' See  Girard  Life  Ins.  &  Trust  Marsh  v.   Pike,   10  Paige  Ch.    (N. 

Co.  V.  Stewart,  86  Pa.  St.  89;  Len-  Y.)   595;  Halsey  v.  Reed,  9  Paige 

nig's  Estate,  52   Pa.   St.    135.     See  Ch.    (N.  Y.)   446;  Curtis  v.  Tyler, 

ante,  §  748.  9  Paige  Ch.   (N.  Y.)  432;  Blyer  v. 

^^  Southern  Indiana  Loan  &  Sav-  MonhoUand,  2  Sandf.  Ch.   (N.  Y.) 

ings  Institution  V-  Roberts,  42  Ind.  478;  Miller  v.  Thompson,  34  Mich. 

App.  653,  86  N.  E.  490.    See  Kreid-  10. 
ler  V.Hyde,  120  111.  App.  505;  Rut- 


1104  MORTGAGE    FORECLOSURES.  [§    751 

premises.^"  Therefore,  where  a  clause  is  inserted  in  the  deed 
of  conveyance  without  the  knowledge  of  the  grantee,  by  which 
he  is  made  to  assume  and  agree  to  pay  the  mortgage,  and  he 
has  no  knowledge  or  notice  of  the  insertion  of  such  clause 
until  after  the  commencement  of  foreclosure  procedings,  he 
may  set  up  in  his  answer  that  the  insertion  of  such  clause 
was  a  fraud  and  without  his  knowledge,  and  he  may  have  the 
deed  reformed  by  striking  out  such  clause.** 

§  751.  No  judgment  of  deficiency  against  non-resi- 
dent.— A  personal  judgment  for  deficiency  cannot  be 
rendered  against  a  non-resident  who  has  not  appeared  in  the 
action,  or  who  has  not  been  personally  served  with  the  sum- 
mons within  the  state.®^  Where  the  statute  provides  for  serv- 
ice by  publication,  a  judgment  obtained  against  a  non-resident 
upon  such  service  can  be  enforced  against  the  mortgaged 
property  only;  such  a  judgment  does  not  impose  a  personal 
liability  upon  him.*' 

But  it  has  been  said  that  due  process  of  law,  without  which 
one  cannot  be  bound  by  a  judicial  decree  nor  deprived  of  his 
property,  does  not  necessarily  require  the  personal  service  of 
a  notice  of  the  proceedings ;  **  and  that  the  legislature  may  de- 
clare that  judgments  obtained  against  a  non-resident,  upon 
service  by  publication,  may  be  enforced  against  all  property 
of  such  defendant  found  within  the  state  where  the  judgment 
is  rendered." 

6"  Parker  v.  Jenks,  36  N.  J.  Eq.  »2  Schwinger  v.  Hickok,  S3  N.  Y. 

(9  Stew.)  398.    Set  Dey-Ermand  v.  280;    Lawrence   v.    Fellows,    Walk. 

Chamberlain,  22  Hun   (N.  Y.)    110,  Ch.   (Mich.)  468.     See  ante,  §  224. 

afif'd  88  N.  Y.  658.     See  also  Giesy  63  Schwinger  v.  Hickok,  53  N.  Y. 

V.  Truman,  17  App.  D.  C.  449.  280;  Latta  v.  Tutton,  122  Cal.  279. 

51  King,  as  trustee,  etc.  v.  Sulli-  68  Am.  St.  Rep.  30,  54  Pac.  844. 

van,   31    App.    Div.    549,   52    N.    Y.  54 /„   ^e   Empire   State   Bank,   18 

Supp.  130.     See  Johns  v.  Wilson,  6  N.  Y.   199,  215.     See  Schwinger  v. 

Ariz.  125,  53  Pac.  583;  DcyErmand  Hickok,  53  N.  Y.  284. 

V.  Chamberlain,  88  N.  Y.  658;  Al-  55  See  Bissell  v.  Briggs,  9  Mass. 

bany  City  Sav.  Inst.  v.  Bnrdick,  87  462,  6  Am.  Dec.  88;  Boswell  v.  Otis. 

N.  Y.  40.     See  ante,  §  745.  50  U.  S.   (9  How.)   336,   13  L.  ed. 


§    752]  JUDGMENT    FOR   DEFICIENCY.  1105 

§  752.  No  judgment  of  deficiency  for  installments  not 
yet  due. — On  a  mortgage  foreclosure,  a  personal  judg- 
ment cannot  be  rendered  against  the  mortgagor,  or  other  per- 
son liable  for  the  payment  of  the  debt,  for  any  deficiency  be- 
fore such  debt  becomes  due  according  to  the  contract.*®  It 
seems  that  a  judgment  of  foreclosure  for  the  whole  amount 
due  and  to  become  due  on  several  notes,  secured  by  a  mortgage 
or  otherwise,  is  not  erroneous,  if  rendered  in  conformity  to 
law."  But  it  has  been  said  that  whefe  a  mortgage  securing 
a  debt  payable  in  installments,  some,  of  which  are  due  and 
others  yet  to  become  due,  is  foreclosed,  the  court  can  only 
direct,  as  to  the  installments  not  due,  at  what  time  and  upon 
what  default  subsequent  executions  shall  issue  to  collect  the 
amounts  of  such  installments.** 

Where  a  mortgage  provides  that,  upon  default  in  the  pay- 
ment of  an  installment  of  the  debt,  or  in  the  payment  of  the 
interest,  the  whole  debt  shall  immediately  become  due  and 
payable,  a  personal  judgment  may  be  entered  for  the  whole 
amount  upon  the  first  default  in  the  payment  of  the  princi- 
pal or  interest.*^ 

The  supreme  court  of  South  Carolina,  in  the  case  of  Patter- 
son V.  Baxley,®°  hold  that  a  decree  of  foreclosure  and  sale 
rendered  upon  default  in  the  payment  of  installments  due, 
which,  after  ordering  that  upon  the  next  installment  becom- 
ing due  the  mortgagee  have  an  order  for  the  sale  of  the  lands 

164;  Thompson  v.  Emmert,  4  McL.  v.  Harding,  11  Ind.  245;  Lacoss  v. 

C.   C.  96;  In  re  Linforth,  87  Fed.  Keegan,  2  Ind.  406;  Cecil  v.  Dynes. 

386.  2  Ind.  266;   Greenman  v-  Pattison. 

^^Danforth  v.  Coleman,  23  Wis.  8    Blackf.    (Ind.)    465;    Darrow   v. 

528.     See  Skelton  v.  Ward,  51  Ind.  Scullin,  19  Kan.  57;  Adams  v.  Es- 

46;     Packard     v.     Kinzie     Avenue  sex,  1  Bibb.  (Ky.)   149,  4  Am.  Dec. 

Heights  Co.  96  Wis.  114,  70  N.  W.  623;  Reddick  v.  Gressman,  49  Mo. 

1066;  also  ante,  §  225.  389;    Bank   v.    Chester,    11    Pa.    St. 

^T  Allen  V.  Parker,  11  Ind.  504.  282,  290,  51  Am.  Dec.  547;  Scheibe 

^^  Skelton   V.    Ward,   51    Ind.   46.  v.  /v^m^cJj,  64  Wis.  564.  567 ;  Man- 
See  ante,  §  225.  ning  v.  McClurg,  14  Wis.  350.     See 

^^  Hatcher  v.  Chancey,  71  Ga.  689;  ante,  §  225. 

Miller  v.  Remley,  35  Ind.  539;  Hunt  ^f^  33  S.  C  354,  11  S.  E.  1065. 
Mortg.  Vol.  II.— 70. 


1106  MORTGAGE    FORECLOSURES.  {§    753 

for  such  installment,  further  orders  that  the  mortgagee  be 
at  liberty,  at  any  time  thereafter  when  any  deficiency  shall 
be  due,  to  apply  to  the  court  for  an  execution  against  all 
the  defendants  to  collect  the  amount  due, — includes  the  judg- 
ment for  the  deficiency,  which  is  entered  as  of  the  date  of 
the  entry  of  the  decree,  although  the  deficiency  is  subse- 
quently ascertained  and  confirmed. 

§  753.  Deficiency — How  determined. — In  a  mortgage 
foreclosure  the  mortgagor  is  entitled  to  be  credited  on  the 
mortgage  debt  only  with  the  net  proceeds  realized  from 
the  sale  of  the  premises,  and  will  continue  liable  for  all  de- 
ficiency remaining  unpaid.  The  amount  of  the  deficiency  is 
to  be  ascertained  by  deducting  from  the  proceeds  of  the  sale 
all  taxes  and  other  liens,  together  with  the  expenses  of  the 
sale,  and  by  treating  the  balance  as  net  proceeds,  which  must 
be  credited  upon  the  amount  due  on  the  bond  and  mortgage 
for  principal  and  interest;  the  balance  then  remaining  unpaid 
will  be  the  deficiency.^^  A  purchase  by  the  plaintiff  will  not 
vary  the  rule.®^ 

It  has  been  held  that  a  defendant  in  an  action  in  another 
state  to  recover  the  balance  of  the  mortgage  debt,  after  a 
foreclosure  and  sale  of  the  mortgaged  property  in  New  York, 
cannot  show  that  the  real  value  of  the  property  was  greater 

61  See  Bailey  v.  Block,  134  S.  W.  Burr  v.  Feeder,  3  Wend.  (N.  Y.) 
323  (Tex.)  ;  Sidcnherg  v.  Ely,  90  N.  412.  See  ante,  §  225. 
Y.  257,  262-263,  43  Am.  Rep.  163 ;  ^  In  the  case  of  Cornell  v.  Wood- 
Marshall  V.  Davies,  78  N.  Y.  414,  ruff,  77  N.  Y.  203,  by  the  judgment 
58  How.  (N.  Y.)  Pr.  231,  reversing  in  a  foreclosure  suit  and  by  the 
16  Hun  (N.  Y.)  606;  Cornell  v.  terms  of  sale,  all  liens  upon  the 
Woodruff,  77  N.  Y.  203 ;  Williams  premises  for  taxes  and  assessments 
V.  Townsend,  31  N.  Y.  411,  414;  were  to  be  deducted  from  the  pro- 
Robinson  v.  Ryan,  25  N.  Y.  320;  ceeds  of  the  sale.  The  plaintiff  be- 
Eagle  Fire  Ins.  Co.  v-  Pell,  2  Edw.  came  the  purchaser.  The  premises 
Ch.  (N.  Y.)  631;  Faure  v.  Winans,  were  situated  in  the  city  of  Brook- 
Hopk.  Ch.  (N.  Y.)  283,  14  Am.  lyn,  and  at  the  time  of  the  sale 
Dec.  545 ;  Brevoort  v.  Randolph,  7  several  years'  municipal  taxes  were 
How.  (N.  Y.)  Pr.  398;  Weed  v.  in  arrears,  for  which  the  mort 
Hornby,  35  Hun  (N.  Y.)  580,  582;  gaged     premises     had     been     sold 


§  753] 


JUDGMENT    FOR    DEFICIENCY. 


1107 


than  the  amount  for  which  it  was  sold.®'  The  judgment  in  a 
foreclosure  fixes  the  amount  due  on  the  obligation  and  se- 
curity, and  is  a  final  adjudication  on  that  point;  and  no  ob- 
jections can  be  made  to  the  issuing  of  an  execution  for  the 
deficiency,  unless  they  arose  after  the  confirmation  of  the  fore- 
closure sale  and,  recognizing  the  decree,  tend  to  the  satis- 
faction of  the  judgment.®* 

Under  the  existing  statutes  of  Wisconsin,  a  personal  judg- 
ment against  the  mortgagor  for  the  whole  amount  of  the 
mortgage  debt,  or  even  for  the  deficiency  after  a  sale  of  the 
mortgaged  property,  cannot  be  entered  with  the  decree  of 
foreclosure,  though  such  decree  may  include  a  direction  for  a 
subsequent  judgment  of  deficiency,  if  demanded  in  the  com- 
plaint. A  judgment  for  deficiency  can  be  entered  only  after 
such  deficiency  has  been  duly  ascertained,  and  it  can  be  as- 
certained only  after  the  sale  has  been  made  and  confirmed. 
A  judgment  in  violation  of  this  rule  will  be  reversed.®^ 

The  supreme  court  of  South  Carolina,  in  the  case  of  Dial 
V.  Gray,®®  say  that  where  joint  debtors  upon  a  note  for  a  cer- 
tain amount  give  a  mortgage  upon  a  lot  owned  by  them  jointly, 
to  secure  a  certain  proportion  of  such  debt,  and  one  of  them 
gives  a  mortgage  upon  his  individual  property  to  secure  the 
balance  of  the  debt,  in  the  absence  of  anything  to  show  to 


Certificates  of  sale  had  been  issued, 
which  were  held  by  the  plaintiff. 
No  lease  had  been  executed.  After 
the  foreclosure  sale,  the  plaintiff 
caused  the  amount  necessary  to  re- 
deem the  premises  from  the  tax 
sales  to  be  deposited  in  the  proper 
office,  and  furnished  to  the  sheriff 
the  certificate  of  deposit  and  re- 
demption, the  amount  of  which  he 
deducted  from  the  purchase  money 
as  liens  for  taxes,  and  reported  a 
deficiency  against  the  mortgagor. 
Held  no  error ;  that  the  certificates 
of  sale  were  liens  to  the  amount 
necessary    to     redeem,     i.     e. ,    the 


amount  of  taxes,  expenses  of  sale 
and  interest  at  the  rate  allowed  by 
law  upon  such  sales;  and  that  the 
right  to  allow  and  deduct  from  the 
proceeds  of  sale  the  amount  so 
necessary  to  redeem  was  not  af- 
fected by  the  fact  that  the  plain- 
tiff himself   held  the  certificates. 

^3  Belmont  v.  Cornen,  48  Conn. 
338. 

64  Haldane  v.  Sweet,  58  Mich  429. 

65  Welp  V.  Gunther,  48  Wis.  543- 
See  Bailey  v.  Block,  134  S.  W.  323. 
(Tex.) 

66  27  S.  C.  171,  3  S.  E.  84. 


1108 


MORTGAGE    FORECLOSURES. 


[§  754 


the  contrary,  the  respective  parcels  of  land  will  be  liable  only 
for  the  portions  of  the  debt  secured  upon  them. 

§  754.  When  judgment  for  deficiency  may  be  docket- 
ed.— In  a  mortgage  foreclosure,  a  personal  judgment  can- 
not be  rendered  for  the  payment  of  any  deficiency  until  the 
amount  of  such  deficiency  has  been  ascertained  by  the  officer 
conducting  the  sale,  and  his  report  thereof  has  been  confirmed 
by  the  court.^'  Whatever  may  be  the  form  of  the  debt,  an 
absolute  personal  judgment  for  any  deficiency  cannot  be  ren- 
dered on  foreclosure,  but  only  a  contingent  judgment  against 
the  defendants  to  the  extent  of  any  deficiency  which  may 
remain  after  the  sale  of  the  mortgaged  premises. ^^ 

It  has  been  held  that  the  court  may  make  a  contingent 
decree  for  the  payment  of  any  deficiency  against  the  mort- 
gagor, or  other  party  personally  liable  for  the  mortgage  debt, 
previous  to  the  sale  or  after  it,  without  waiting  for  the  con- 
firmation of  the  report  of  sale.^^  In  New  York  there  is  no 
statutory  limitation  for  the  docketing  of  a  deficiency  judg- 
ment.'" 

The  supreme  court  of  New  York  say  that  under  a  mort- 
gage on  lands  partly  in  New  York  and  partly  in  another  state, 
the  mortgagee  is  not  bound  to  sell  the  land  in  the  latter  state 
before  entering  a  judgment  for  deficiency.''^^     And  the  same 


^iHall  V.    Young,  29  S.  C  64,  6 
S.  E.  938.    See  Cook  v.  Moulton,  as 
trustee,  etc.,  64  111.  App.  429 ;  Bache 
V.  Doscher,  41  N.  Y.  Supr.  Ct-  (9  J. 
&  S.)    150;  DeAgreda  v.  Mantel,  1 
Abb.    (N;   Y.)    Pr.    130;    Cobb    v. 
Thornton,  8  How.  (N.  Y.)   Pr.  66 
Cormerais  v.  Genella,  22  Cal.   116 
Mickle  V.  Maxfield,  42  Mich.  304 
Howe    V.    Lemon,    2>1    Mich.    164 
Clapp  V.  Maxwell,  13  Neb.  542,  547. 
See  also  Hastings  v.  Alabama  State 
Land  Co.  124  Ala.  608,  26  So.  881. 
(Vendor's    Lien)  ;    Lowe    v.    Weil, 
117  N.  Y.  Supp.   1025. 


^^  Brown  v.  Willis,  67  Cal.  235. 
See  Siewert  v.  Hamel,  3Z  Hun  (N. 
Y.)  44;  Loeb  v.  Willis,  22  Hun  (N. 
Y.)    508. 

^^  McCarthy  v.  Graham,  8  Paige 
Ch.  (N.  Y.)  480.  But  see  Cobb  v. 
Thornton,  8  How.   (N.  Y.)   Pr.  66. 

'^'^  Brown  V.  Faile,  112  App.  Div. 
302,  98  N.  Y.  Supp.  420. 

'^^  Clark  V.  Simmons,  55  Hun  (N. 
Y.),  175,  8  N.  Y.  Supp.  74,  28  N.  Y. 
S.  R.  738.  See  also  Tatum  v.  Bal- 
lard, 94  Va.  370,  26  S.  E.  871. 


§    755]  JUDGMENT    FOR    DEFICIENCY.  1109 

court  say,  in  the  case  of  Hawley  v.  Whalen,  '^  that  a  judg- 
ment for  deficiency  upon  a  foreclosure  sale  may  properly 
be  entered  and  docketed,  notwithstanding  a  provision  in  the 
decree  of  foreclosure  that  a  certain  defendant  pay  any  defi- 
ciency that  may  arise  entitles  plaintiff  to  issue  execution 
therefor  without  further  judgment. 

The  supreme  court  of  California,  in  the  case  of  Toby  v. 
Oregon  Pacific  Railroad  Company,'^^  say  that  a  deficiency 
judgment  may  be  granted  for  the  balance  due,  where  a 
steamship,  after  a  decree  of  foreclosure  and  sale  thereof,  has 
been  sold  by  a  receiver,  under  an  interlocutory  decree  of  the 
court,  for  less  than  the  amount  of  the  mortgage,  and  that 
sale  has  been  confirmed,  although  California  Code  Civil  Pro- 
cedure, §  726,  provides  for  a  deficiency  judgment  only  "if 
it  appears  from  the  sheriff's  return  that  the  proceeds  are 
insufficient." 

§  755.  When  judgment  for  deficiency  becomes  a  lien. — 

A  personal  decree  for  the  deficiency,  after  the  application  of 
the  proceeds  of  the  sale  to  pay  the  mortgage  debt,  does  not 
have  the  force  and  effect  of  a  judgment  at  law  and  become 
a  lien  upon  the  real  property  of  the  person  against  whom  it 
is  taken,  until  the  excess  of  the  mortgage  debt  over  the  pro- 
ceeds of  the  sale  has  been  ascertained  and  a  subsequent  judg- 
ment at  law  has  been  docketed. ''*  But  it  has  been  held  in 
Indiana,  that  whenever  in  a  proceeding  to  foreclose  a  mort- 
gage, the  plaintiff  is  entitled  to  a  personal  judgment,  and  an 
order  made  under  the  statute,  that  after  the  sale  of  the 
mortgaged  premises,  the  residue  of  the  judgment  remaining 

72  64  Hun  (N.  Y.)  550,  19  N.  Y.       Y.)    Pr.   130;   Cobb  v.   Thornton,  8 
Supp.  521,  46  N.  Y.  S.  R.  512.  How    (N.  Y.)    Pr.  66;  Englund  v. 

73  98  Cal.  490,  32   Pac.  550.  Lewis,    25     Cal.     337;     Chapin     v. 
''^Mutual  Life  Ins.  Co.  v.  South-       Broder,    16    Cal.    403.     See    N.    Y. 

ard,  25   N.  J.   Eq.    (10  C.   E.   Gr.)  Code  Civ.  Proc.  §  1250.     French  v. 

337;  Bell  v.  Gilmorc,  25  N.  J.  Eq.  French,   107  App.   Div.    107,  94   N. 

(10    C.    E.     Gr.)     104.     See    also  Y.  Supp.  1026. 
DeAgreda   v.   Mantel,    1    Abb.    (N. 


1110  MORTGAGE   FORECLOSURES-  [§    756 

unpaid,  shall  be  levied  on  other  property  of  the  mortgagoi 
the  judgment  is  from  the  date  of  its  rendition  a  lien  on  all 
the  lands  of  the  mortgagor  in  the  county/^     In  California, 
such  a  judgment  becomes  a  lien  upon  the  property  of  the 
debtor  only  from  the  time  it  is  docketed.'''^ 

§  756.  Execution  for  deficiency. — Upon  the  usual  de- 
cree for  the  amount  of  the  deficiency  against  the  mortgagor 
or  other  defendant  personally  liable  for  the  mortgage  debt, 
an  execution  cannot  regularly  issue  prior  to  the  filing  and  con- 
firmation of  the  report  of  the  officer  making  the  sale.''  Upon 
the  coming  in  of  the  report  of  the  referee,  from  which  the 
amount  of  the  deficiency  is  ascertained,  it  is  not  necessary  to 
apply  to  the  court  for  judgment  against  the  mortgagor  for 
such  deficiency.  The  execution  may  be  issued  directly  on  the 
judgment  of  foreclosure.'* 

An  execution  for  the  deficiency  on  a  foreclosure  should  not, 
as  a  rule,  be  issued  without  special  application  to  the  court 
upon  notice  to  the  defendant.'^  The  decree  in  foreclosure 
making  a  defendant  personally  liable  for  any  deficiency,  taken 
together  with  the  referee's  report  of  the  amount  of  such  de- 
ficiency, furnishes  a  prima  facie  case  against  such  defend- 
ant;*" but  a  defendant  may  resist  an  execution  against  him 
by  showing  objections  which  are  not  contradictory  to  the 
decree  and  which  would  operate  to  eflFect  its  satisfaction.** 

"^^  Fletcher   v.    Holmes,    25     Ind.  41  Wis.  54;  Baird  v.  McConkey,  20 

458.  Wis.  297. 

'6  Cormerais   v.    Genella,  22   Cal.  '^  Bicknell  v.   Byrnes,    23    How. 

116.     See  Rowe  v.  Table  Mountain  (N.    Y.)     Pr.    486,    490,    Moore    v. 

JVater  Co.   10  Cal.  441;  Rollins  v.  Sliazv,   15   Hun    (N.   Y.)    428.     See 

Forbes,  10  Cal.  299.  Schulcr  v.  Fowler,  63  Kan.  98,  64 

''''  Bank  of  Rochester  v.  Emerson,  Pac.  1035. 

10  Paige  Ch.  (N.  Y.)  115,  10  Paige  ^^McCrickett  v.  Wilson,  50  Mich. 

Ch.    (N.    Y.)    359.     See    Baclie    v.  513;  Giles  v.  Green,  42  Mich.   107; 

Doscher,  41  N.  Y.  Supr.  Ct.    (9  J.  Clapp  v.  Maxwell,  13  Neb.  542. 

&  S.)    150;   Cobb    v.    Thornton,    8  ^'^  Ransom      v.      Sutherland,      46 

How.    (N.  Y.)     Pr.    66;    Hanover  Mich.  489. 

Fire  Ins.  Co.  v.  Tomlinson,  3  Hun  ^^  Ransom      v.      Sutherland.     46 

<N.   Y.)    630;    Tormey   v.   Gcrharf.  Mich.  489. 


§    757]  JUDGMENT    FOR    DEFICIENCY.  1111 

§  757.  Miscellaneous  matters  connected  with  judg- 
ments for  deficiency. — Many  matters  intimately  asso- 
ciated with  judgments  for  deficiency,  which  would  seem  to 
belong  to  this  chapter,  have  already  been  fully  considered  in 
an  earlier  part  of  the  work  on  parties  defendant  personally 
liable  for  the  mortgage  debt.'^  They  are  for  that  reason 
omitted  here.  Among  such  matters  may  be  mentioned  the 
remedies  for  collecting  a  deficiency  against  the  estate  of  a 
decedent  who  was  personally  liable  for  the  payment  thereof ;  '^ 
the  remedies  against  the  heirs  and  devisees  of  such  a  dece- 
dent;^* the  liability  of  the  estates  of  married  women  for  the 
payment  of  deficiencies  arising  on  their  personal  obligations 
for  the  payment  of  mortgage  debts  ;'^  the  history  of  the 
procedure  for  enforcing  the  collection  of  deficiencies ;  *®  and 
technical  points  connected  with  the  complaint  and  the  decree 
of  sale.*' 

82  See  ante,  chap,  xxi,  85  s^g  ayite,  §§  230-233,  257. 

88  See  ante,  §§  234-236,  258.  86  See  ante,  §§  215-220. 

84  See  ante,  §§  235-236.  87  See  ante,  §§  221-225. 


CHAPTER  XXX. 

RECEIVER— PRACTICE  ON  APPOINTMENT. 

NATURE  AND  OBJECT  OF  OFFICE — MODES  OF  APPOINTMENT—  APPLICATION  FOR 
— WHAT  MUST  BE  SHOWN — APPOINTMENT  BY  REFEREE — ORDER  APPOINTING— 
RIGHTS,   POWERS,  DUTIES. 

§  758.  Introductory — Right  of  mortgagor  to  rents  and  profits. 

§  759.  Nature  of  office  of  receiver. 

§  760.  Object  of  office  of  receiver. 

§  761.  Appointment  of  receiver. 

§  762.  When  receiver  will  be  appointed — Prima  facie  case. 

§  763.  Rules  for  the  appointment  of  a  receiver. 

§  764.  Modes  of  appointment. 

§  765.  Jurisdiction  of  the  court  to  appoint  a  receiver. 

§  766.  Doctrine  in  various  states. 

§  767.  Appointment  of  receiver  by  federal  courts. 

§  768.  Manner  of  appointing  receiver — Motion  or  petition. 

§  769.  Appointment  of  receiver  by  the  court. 

§  770.  On  what  papers  application  for  receiver  made. 

§  771.  Notice  of  application  for  receiver. 

§  772.  Appointment  of  receiver  on  ex  parte  application. 

§  773.  What  the  application  must  show. 

§  774.  Objections  to  appointment  of  receiver. 

§  775.  Appointment  of  receiver  by  referee  or  master. 

§  776.  Report  of  referee  or  master. 

§  777.  Order  of  appointment  on  report  of  referee  recommending  proper 

person. 
§  778.  Order  of  appointment  by  referee. 
§  779.  Order  of  appointment  by  court — Appeals. 
§  780.  Contents  of  order  appointing  receiver — Powers  defined — Property 

described. 
§  781.  Proposal  of  names  for  receiver. 
§  782.  Ineligibility  to  be  appointed  a  receiver. 
§  783.  From  what  time  a  receiver  considered  as  appointed. 
§  784.  Bond  of  receiver. 
§  785.  Effect  of  appointment  of  receiver. 
§  786.  Jurisdiction  of  receiver. 
§  787.  Nature  of  receiver's  possession. 
§  788.  Rights  and  powers  of  receivers. 

1112 


§    758]  RECEIVER.  1113 

§  789.  Rights  and  duties  of  receivers. 

§  790.  Rents  bound  from  date  of  appointment  of  receiver. 

§  791.  Personal  liability  of  receivers. 

§  758.  Introductory — Right  of  mortgagor  to  rents  and 
profits. — In  those  states  where  the  right  of  entry  by  the 
mortgagee  has  been  abohshed  by  statute,  the  mortgagor  is 
entitled,  both  in  law  and  in  equity,  to  the  complete  enjoy- 
ment of  the  mortgaged  premises,  and  of  the  rents  and  profits 
thereof,  unless  such  rents  and  profits  have  been  pledged,  by 
an  express  stipulation  in  the  mortgage,  for  the  payment  of 
the  debt."*  And  where  no  proceedings  are  instituted  for  the 
appointment  of  a  receiver  to  take  charge  of  the  rents  and 
profits,  the  right  of  the  mortgagor  to  receive  them  will  con- 
tinue until  it  is  divested  by  a  foreclosure  and  sale,  and  even 
after  a  sale,  until  the  purchaser  becomes  entitled  to  the  pos- 
session of  the  premises  under  the  referee's  deed ;  ^*  Such  right 
will  be  terminated  only  upon  producing  to  the  occupant  of 
the  premises  the  deed  of  the  referee  or  other  officer  conduct- 
ing the  sale.*^ 

But,  in  all  cases  where  the  security  is  insufficient,  and  the 
mortgagor,  or  other  party  who  is  personally  liable  for  the 
payment  of  the  debt,  is  insolvent,  the  mortgagee  may  have  a 
receiver  appointed  to  take  charge  of  the  mortgaged  premises 

»^^ Syracuse   City   Bank   v.    Tall-  v.  Beekman,   11   Abb.    (N.  Y.)    Pr. 

man,  31    Barb..  (N.   Y.)    201,   208;  N.  S.  147,  152,  42  How.  (N.  Y.)  Pr. 

Zeiter  v.  Bowman,  6  Barb.  (N.  Y.)  ZZ.  Z7 ;  33  N.  Y.  Supr.  Ct.   (1  J.  & 

133,    139;    Ensign    v.    Colburn,    11  S.)   67,  77;  Peck  v.  Knickerbocker 

Paige  Ch.   (N.  Y.)   503;  Howell  v.  Ice  Co.   18  Hun   (N.  Y.)    183,  186; 

Ripley,   10   Paige  Ch.    (N.  Y.)    43;  Aster  v.  Turner,  11  Paige  Ch.   (N. 

Bank  of  Ogdensburg  v.  Arnold,  5  Y.  436,  43  Am.  Dec.  766;  Howell  v. 

Paige  Ch.  (N.  Y.)  38,  41.    See  ante,  Ripley,   10   Paige  Ch.    (N.  Y.)   43; 

§  718.  Clason  v.  Corley,  5  Sandf.   (N.  Y. ) 

88  See  Argall  v.  Pitts,  78   N.  Y.  447;    Lofsky   v.    Maujcr,   3    Sandf. 

239;  Mitchell  v.  Bartlett,  51  N.  Y.  Ch.  (N.  Y.)  69. 
447 ;  Cheney  v.  Woodruff,  45  N.  Y.  89  See  N.  Y.  Supreme  Court  Rule 

98.  101;  Whalin  v.  White,  25  N.  Y.  61;  Clason  v.  Corley,  5  Sandf.   (N. 

462,  465;   Giles  v.  Comstock.  4  N.  Y.)  447. 
Y.  270,  275,  S3  Am.  Dec.  347 ;  Miner 


1114  MORTGAGE    FORECLOSURES.  [§    759 

and  of  such  of  the  rents  and  profits  as  have  not  yet  been  col- 
lected, unless  the  mortgagor  or  other  person  entitled  to  the 
possession  gives  security  to  account  for  the  rents  and  profits, 
ir  case  there  is  a  deficiency.^" 

§  759.  Nature  of  office  of  receiver. — A  receiver  is  a 
disinterested  person,  as  between  the  parties  to  a  foreclosure, 
appointed  to  collect  the  rents,  issues  and  profits  of  the  mort- 
gaged premises  pending  the  suit,®^  where  it  does  not  seem 
just  and  prudent  to  the  court  that  any  of  the  parties  to  the 
action  should  be  permitted  to  collect  them.'^ 

It  is  the  duty  of  a  receiver  to  take  charge  of  the  prop- 
erty pending  the  litigation;  to  preserve  it  from  waste  or  de- 
struction; to  receive  the  rents  and  profits,  and  to  dispose  of 
them  under  the  direction  of  the  court.^^  He  is  simply  to  pro- 
tect and  care  for  the  property  or  the  fund  entrusted  to  him.^* 
and  to  make  no  disposition  of  it  until  directed  by  the  court, 
from  which  alone  he  derives  his  authority.'^ 

He  is  a  ministerial  officer  of  the  court,^®  and  his  term  of 

^° Syracuse  City  Bankv.Tallman,  White,  6  Barb.    (N.  Y.)    589,  597; 

31   Barb.   (N.  Y.)  201;  Shotwell  v.  Booth  v.  Clark,  58  U.  S.  (17  How.) 

Smith,  3   Edw.   Ch.    (N.   Y.)    588;  323,  331,    15   L.  ed.   164;   Edw.   on 

Smith  V.  Tiffany,  13  Hun   (N.  Y.)  Rec.  2;  Wyatt's  Practice  Reg.  355; 

671;  Astor  v.  Turner,  11  Paige  Ch.  Dan.  Ch.  Pr.  1552;  2  Barb.  Ch.  Pr. 

(N.  Y.)   436,    43    Am.    Dec.    766;  (2d  ed.)  658. 

Howell  V.  Ripley,  10  Paige  Ch.  (N.  ^^  Green    v.    Bostwick,    1    Sandf. 

Y.)  43;  Sea  Ins.  Co.  v.  Stebbins,  8  Ch.     (N.     Y.)     185;     Beverley     v. 

Paige  Ch.    (N.  Y.)    565;    Main    v.  Brooke,  4  Gratt.   (Va.)   187;  Booth 

Ginthert,  92  Ind.    180;   Connelly  v.  v.  Clark,  S%  U.  S.   (17  How.)   323, 

Dickson,    76    Ind.    440;    Myers    v.  331,  IS  L.  ed.  164. 

Estell,  48  Miss.  37Z.  ^*  A  receiver  is  not  a  trustee  of 

31  Where  a  court  ordered  money  an  express  trust.     Fichtenkamm  v. 

raised  by  attachment  to  be  deposit-  Games,  68  Mo.  289. 

ed  with  a  designated  banker,  upon  ^^  Lottimer    v.    Lord,    4    E.     D. 

condition   that   he   pay    seven    per  Smith   (N.  Y.)   183. 

centum    interest    thereon    while    in  ^^  Field   v.   Jones,     11     Ga.    418; 

his   hands,    it   was    held   that    such  Maguire  v.  Allen,  1  Ball.  &  B.  75 ; 

banker  was   not   a   receiver.    Cole-  Bryan  v.  Cormick,  1  Cox  Ch.  422, 

man  v.  Salisbury,  52  Ga.  470.  423;  Angel  v.  Smith,  9  Ves.  335. 

92  Chautauqua    County    Bank    v. 


§   /bUJ 


RECEIVER. 


1115 


office  continues  only  during  the  pendency  of  the  suit,  unless  it 
is  otherwise  directed  by  the  order  appointing  him.^'  He  is  the 
mere  hand  of  the  court  in  the  management  of  the  property 
or  the  fund.^^  His  appointment  is  on  behalf  of  all  the  parties 
to  the  action,*^  and  not  of  the  plaintiff  or  the  defendant  only  ;^ 
and  for  the  benefit  of  all  who  may  establish  an  interest  in 
the  property.^ 

§  760.  Object  of  office  of  receiver. — The  object  of  ob- 
taining the  appointment  of  a  receiver  is  generally  to  gain 
a  priority  of  lien  on  the  rents  and  profits  of  the  premises,  so 
that  the  court  will  have  the  power  of  directing  their  appli- 
cation to  the  payment  of  the  plaintiff's  claim  ;^  a  receiver 
cannot  properly  be  appointed  where  the  court  does  not  have 
such  power.*  The  immediate  and  actual  cause  for  the  appoint- 
ment of  a  receiver  in  a  foreclosure,  is  to  secure  the  rents  and 


97  Weems  v.  Lathrop,  42  Tex. 
207;  Meier  v.  Kansas  Pac.  Ry.  Co. 
5  Dill.  C.  C.  476,  6  Rep.  642. 

^^  Richards  v.  Chesapeake  &  O. 
R.  R.  Co.  1  Hughes  C.  C.  28 ;  Van- 
Rensselaer  v.  Emery,  9  How.  (N. 
Y.)    Pr.   135. 

99  But  he  represents  no  interest 
of  a  stranger  to  the  suit  in  which 
he  was  appointed.  Howell  v.  Rip- 
ley, 10  Paige  Ch.   (N.  Y.)  43. 

^  See  Davis  v.  Marlborough,  2 
Swans,  113,  125;  Hutchinson  v. 
Massareene,  2  Ball  &  B.  55.  Junior 
mortgagees  may,  however,  by  su- 
perior diligence  in  having  a  receiver 
appointed,  acquire  a  senior  right  to 
the  rents  and  profits  collected.  See 
Post  V.  Dorr,  4  Edw.  Ch.  (N.  Y.) 
412 ;  Howell  v.  Ripley,  10  Paige  Ch. 
(N.  Y.)  43;  Miltenberger  v. 
Logansport  R.  R.  Co.  106  U.  S.  (16 
Otto),  286.  27  L.  ed.  117,  1  Sup. 
Ct.  Rep.  140;  Thomas  v.  Brigstocke, 
4  Russ.  Ch.  64. 


2  Porter  v.  Williams,  9  N.  Y.  142, 
59  Am.  Dec.  519.  See  Curtis  v. 
Leavitt,  15  N.  Y.  9;  Gillet  v. 
Moody,  3  N.  Y.  479;  Booth  v. 
Clark,  58  U.  S.  (17  How.)  323,  331, 
15  L.  ed.  164 ;  Davis  v.  Marlborough, 
2  Swans.  113,  125. 

^  Evans  v.  Coventry,  3  Drew,  80; 
Tullett  V.  Armstrong,  1  Keen,  428; 
Owen  V.  Homan,  4  H.  L.  10v32. 

^Howell  V.  Ripley,  10  Paige  Ch. 
(N.  Y.)  43;  Evans  v.  Coventry,  3 
Drew.  80;  Wright  v.  Vernon,  3 
Drew.  121.  Yet  a  receiver  is  some- 
times appointed  to  take  charge  of 
property  in  which  a  stranger  has  an 
interest.  Vincent  v.  Parker,  7 
Paige  Ch.  (N.  Y.)  65.  In  such  a 
case  the  court,  will,  from  time  to 
time,  make  such  orders  as  will  pro- 
tect the  rights  of  the  third  party. 
Vincent  v.  Parker,  7  Paige  Ch.  (N. 
Y.)  65 


1116  MORTGAGE    FORECLOSURES.  [§    761 

profits  of  the  mortgaged  premises  in  advance  of  the  final 
judgment,  in  order  that  they  may  be  appHed  towards  any 
deficiency  that  may  exist  between  the  amount  of  the  incum- 
brances and  the  amount  for  which  the  property  may  sell 
under  the  foreclosure.  Courts  have  no  authority  to  interfere 
with  the  mortgagor's  right  to  receive  the  rents  and  profits 
of  the  mortgaged  property,  unless  such  rents  and  profits,  as 
well  as  the  property,  have  been  pledged  as  security  for  the 
debt,^  or  unless  the  security  is  clearly  insufficient.^ 

A  receiver  stands  indifferent  between  the  parties,'  and  is 
in  no  sense  accountable  or  subject  to  the  control  of  any 
party  to  the  suit ;  ^  he  is  to  be  guided  only  by  the  order  ap- 
pointing him,  and  by  the  rules  and  practice  of  the  court.® 
As  he  represents  all  the  parties,  it  is  his  duty  to  act  in  all 
things  with  a  view  to  the  equitable  rights  of  all  parties  inter- 
ested, and  to  protect  the  property  and  funds  in  his  hands  to 
the  best  of  his  ability.^" 

§  761.  Appointment  of  receiver. — The  plaintiff  in  a 
foreclosure  is  entitled  to  the  appointment  of  a  receiver  of 
the  rents  and  profits  of  the  mortgaged  premises  pending  the 
suit,"  where  it  is  highly  probable  that  the  premises  will  not, 

6  See  Syracuse  City  Bank  v.  Tall-  Edw.  Ch.  (N.  Y.)   172;  Lottimer  v. 

man,  31    Barb.    (N.   Y.)    201,   208;  Lord,  4  E.  D.  Smith   (N.  Y.)   183; 

Zeiter  v.  Bowman,  6  Barb.  (N.  Y.)  Baker  v.  Backus,  32  111.  79;  Booth 

133,    139;    Ensign    v.    Colburn,    11  v.  Clark,  58  U.  S.    (17  How.)   323, 

Paige  Ch.   (N.  Y.)  503;  Howell  v.  331,  15  L.  ed.  164. 

Ripley,   10  Paige  Ch.    (N.  Y.)   43;  ^  Musgrove  v.  Nash,  3  Edw.  Ch. 

Bank   of  Ogdensburg  v.  Arnold,  5  (N.  Y.)    172.     See  Broad  v.  Wick- 

Paige  Ch.    (N.  Y.)   38,  41.  ham,  M.   S.   S.    Case,    cited    in    1 

^Shotwell  V.  Smith,  3  Edw.  Ch.  Smith's  Ch.  Pr.  500;  1  VanSant  Eq. 

(N.  Y.)  588;  Bank  of  Ogdensburg  Pr.  375. 

V.  Arnold,  5  Paige  Ch.  (N.  Y.)  38;  ^^  Iddings  v.  Bruen,  4  Sandf.  Ch. 

Quincy  v.  Cheeseman,  4  Sandf.  Ch.  (N.  Y.)    417;  Lottimer  v.  Lord.  4 

(N.  Y.)  405.  E.  D.  Smith  (N.  Y.)   183. 

■^  Vermont  &  C.  R.  R.  Co.  v.  Ver-  ^^  In      California      the      plaintiff 

mont  Cent.  R.  R.  Co.  34  Vt.  1.  formerly   had   no    right   to   have    a 

8  Libby   v.   Rosckrans.    55     Barb.  receiver  of  the  rents  and  profits  of 

''N.  Y.)  202;  Musgrove  v.  Nash,  3  the  land  appointed  pending  a  fore- 


§    762]  RECEIVER.  1117 

upon  a  sale  thereof  under  a  decree  of  foreclosure,  bring  a 
sufficient  sum  to  pay  the  debt  and  the  costs  of  the  suit,  and 
the  mortgagor,  or  other  party  who  is  personally  liable  for  the 
debt,  is  insolvent.^^ 

A  receiver  will  be  appointed  only  on  the  application  of  a 
person  who  has  an  acknowledged  interest  in  the  suit;"  his 
appointment  will  continue  during  the  pendency  of  the  suit, 
unless  his  term  of  office  is  limited  by  the  order  appointing 
him." 

§  762.  When  receiver  will  be  appointed — Prima  facie 
case. — To  entitle  a  mortgagee  to  the  appointment  of  a 
receiver,  it  must  appear  that  the  mortgaged  premises  are  an 
insufficient  security  for  the  debt,  and  that  the  mortgagor,  or 
other  party  personally  liable  for  the  debt,  is  insolvent.^*  A 
receiver  should  be  appointed  only  where  there  is  a  real  ne- 
cessity for  it.^®  In  an  action  by  a  mortgagor  to  redeem,  a 
receiver  will  not  be  appointed  as  against  the  mortgagee  in 
possession,  as  long  as  there  is  a  balance  due  him  on  the  mort- 
gage debt,  unless  he  is  mismanaging  the  property." 

closure.     Guy  v.  Ide,  6  Cal.  79,  65  or  not  a  clause   in    the    mortgage, 

Am.  Dec.  490.  giving  him  possession  in  case  of  de- 

^^  Astor  V.   Turner,  2  Barb.    (N.  fault,  can  be  carried  into  effect  in 

Y.)  444,  3  How.   (N.  Y.)   Pr.  225;  view  of  this  provision,  by  appoint- 

Sea  Ins.   Co.   v.   Stebbins,  8   Paige  ing  a   receiver    on    foreclosure,    it 

Ch.    (N.  Y.)    565,  2  Barb.  Ch.   Pr.  certainly  cannot  be  done  until  after 

(2d  ed.)  293.     See  ante,  §  758.  default,  and  it  would  even  then  be 

13  Chase's     Case,     1     Bland.     Ch.  a  matter  of  discretion.     Beecher  v. 

(Md.)  213,  17  Am.  Dec.  277;   Wil-  Marq.   &  Pac.  Rolling  Mill  Co.  40 

Hams    V.     Wilson,     1     Bland.     Ch.  Mich.  307.     See  post,  §  793. 
(Md.)    421.  1^  Quincy  v.  Cheeseman,  4  Sandf. 

^^Weemes   v.    Lathrop,   42    Tex.  Ch.  (N.  Y.)  405;  McLean  v.  Pres- 

207.    See  ante,  §  759.  ley,  56  Ala.  211;   First  Nat.  Bank 

15  Burlingame   v.   Parce,    12   Hun  v.    Gage,   79   111.   207 ;    Callahan    v. 

(N.     Y.)     148;     Frelinghuysen     v.  Shaw,    19    Iowa,    188;    Oldham    v. 

C olden,  4  Paige  Ch.    (N.  Y.)   204.  First  Nat.  Bank,  ^A  ^.  C.  ZQA;  Mor- 

Under  the  Michigan  statute.  Comp.  risoii    v.    Buckner,    Hempst.    C.    C. 

L.   §§  62,  63,  a  mortgagee    is    ex-  442. 

eluded    from    possession    until    he  ^"^  Patten     v.     Accessory     Transit 

acquires  an  absolute  title.    Whether  Co.  4  Abb.   (N.  Y.)    Pr.  237;  Bol- 


1118 


MORTGAGE    FORECLOSURES. 


[§  762 


Receivers  in  mortgage  foreclosures  are  appointed  with  great 
caution, ^^  and  it  is  only  in  clear  cases  that  they  will  be  ap- 
pointed at  all,^^  as  where  the  rights  of  a  suitor  are  apparently 
well  established  and  can  be  preserved,  pending  the  suit,  only 
by  a  receiver.^" 

The  right  to  the  relief  does  not  grow  out  of  the  legal 
relations  of  the  parties,  nor  out  of  the  stipulations  in  the 
mortgage,  but  out  of  equitable  considerations  alone.  The 
appointment  of  a  receiver  in  a  mortgage  foreclosure  is  not  a 
matter  of  strict  or  absolute  right,  but  is  purely  an  equitable 
one,  and  is  always  addressed  to  the  sound  discretion  of  the 
court,^^  to  be  governed  by  all  the  circumstances  of  the  case.*^^ 
The  plaintiff  must  always  set  forth  a  prima  facie  case,^^  and 
a  probable  right  to  the  property  which  is  the  subject  matter 
of  the  litigation  or  foreclosure.''* 


les  V.  Duff,  35  How.  (N.  Y.)  Pr 
481 ;  Boston,  &c.,  R.  R.  Co.  v.  New 
York,  &c.  R.  R.  Co.  12  R.  I.  220 
Rozve  V.  Wood,  2  Jac.  &  W.  553 
Berney  v.  Sewell,  1  Jac.  &  W.  647 
Quarrell  v.  Beckford,   13  Ves.  377 

18  Warner  v.  Gouverneur,  1  Barb 
(N.  Y.)  36;  Shotwell  v.  Smith,  3 
Edw.  Ch.  (N.  Y.)  588;  Sea  Ins. 
Co.  V.  Stebbins,  8  Paige  Ch.  (N. 
Y.)  565;  Jenkins  v.  Hinman,  5 
Paige  Ch.  (N.  Y.)  309;  Freling- 
huysen  V.  Golden,  4  Paige  Ch.  (N. 
Y.)  204. 

^^Hand  v.  Dexter,  41  Ga.  454. 
See  Sales  v.  Lu^k,  60  Wis.  490. 

20  Overton  V.  Memphis  &  L.  R. 
R.  Co.  3  McCr.  C.  C.  436,  10  Fed. 
866. 

21  See  Rider  v.  Bagley,  84  N.  Y. 
461 ;  Syracuse  Bank  v.  Tallman.  31 
Barb.  (N.  Y.)  201;  The  Orphan 
Asylum  v.  McCartee,  Hopk.  Ch. 
(N.  Y.)  429;  Verplank  v.  Gaines.  1 
Johns.  Ch.  (N.  Y.)  57;  PuUan  v. 
Cincinnati  &  C.  A.  L.  R.  R.  Co.  4 
Biss.  C.  C.  35 ;  Crane  v.  McCoy,  1 


Bond  C.  C.  422;  Vase  v.  Reed,  1 
Wood  C.  C.  647.  See  Copper  Hill 
Mining  Co.  v.  Spencer,  25  Cal.  11, 
13;  West  v.  Chasten,  12  Fla.  315, 
332;  Benneson  v.  Bill,  62  111.  408; 
Connelly  v.  Dickson,  76  Ind.  440; 
Jacobs  V.  Gibson,  9  Neb.  380;  Oak- 
ley V.  Patterson  Bank,  2  N.  J.  Eq. 
(1  H.  W.  Green),  181;  Sloan  v. 
Moore,  27  Pa.  St.  217;  Cone  v. 
Paute,  12  Heisk.  (Tenn.)  506; 
Sales  V.  Lusk,  60  Wis.  490;  Mil- 
waukee  &  M.  R.  R.  Co.  v.  Sautter, 
69  U.  S.  (2  Wall.)  510,  17  L.  ed. 
900;  Owen  v.  Homan,  3  Mac.  &  G. 
378;  Skip  v.  Harwood,  3  Atk.  564. 
See  post,  §  792. 

22  Proof  of  the  insolvency  of  the 
party  personally  liable  for  the  pay- 
ment of  the  mortgage  debt  is  not 
always  required.  Ponder  v.  Tate, 
96  Ind.  330. 

^^  Copper  Hill  Mining  Co.  v. 
Spencer.  25  Cal.  16;  Owen  v.  Ho- 
man, 3  Mac.  &  G.  378. 

24  Saylor  v.  Mockbie.  9  Iowa,  209. 


§    763]  RECEIVER,  1119 

An  express  provision  in  a  mortgage  to  the  effect  that  a 
receiver  be  appointed  upon  foreclosure  is  held  to  be  void  as 
against  public  policy,^^  and  in  the  absence  of  sufficient  causes 
otherwise  authorizing  the  appointment  of  a  receiver,  effect 
will  not  be  given  to  this  stipulation  in  the  mortgage.^^  But  if 
sufficient  other  facts  appear,  a  court  may  in  the  exercise  of 
its  discretion  enforce  the  stipulation.^'^  In  Illinois,  however, 
it  is  held  that  such  a  provision  in  a  mortgage  will  be  enforced 
on  the  theory  that  it  is  in  effect  an  express  application  by  the 
parties  of  the  rents  and  profits  to  the  mortgage  security.^* 

§  763.  Rules  for  the  appointment  of  a  receiver. — No 
positive  and  unvarying  rule  can  be  laid  down  as  to  when  a 
court  will  or  will  not  interfere  by  this  kind  of  interim  pro- 
tection of  the  property. ^^  Where  the  evidence  on  which  the 
court  is  to  act,  is  very  clearly  in  favor  of  the  plaintiff,  there 
should  be  no  hesitancy  about  interfering;  but  where  the  evi- 
dence is  weak  there  will,  of  course,  be  more  difficulty.  The 
question  is  one  of  degree,  and  it  is,  therefore,  impossible  to 
state  any  precise  and  unvarying  rules. ^° 

A  receiver  should  not  be  appointed  in  any  instance  unless 
the  plaintiff  makes  out  a  prima  facie  case,  and  unless  it  also 

25  Couper  V.  Shirley,  75  Fed.  168.  adm'r.  etc.   144  Cal.    659,    79    Pac. 

(Oregon);    Baker  as   rec'r.   etc.   v.  379;   Jarviulowsky   v.    Rosenbloom, 

Varney.   129   Cal.   564.  79  Am.   St.  125  App.  Div.  542,  109  N.  Y.  Supp. 

Rep.  140,  62  Pac.  100.  968. 

^^Lyng    v.    Marcus,    118    N.    Y.  ^1  Pizer  v.  Herzig,  121  App.  Div. 

Supp.    1056;    Garretson  Investment  609,  106  N.  Y.  Supp.  370;  Fletcher 

Co.  V.  Arndt,  144  Cal.  64.  77  Pac.  as   trustee   etc.  v.   Krupp,  35   App. 

770 ;  JEtna  Life  Ins.  Co.  v.  Broeker,  Div.  586,  55  N.  Y.  Supp.  146.     See 

166  Ind.  576,  77  N.  E.  1092;  Jarvis  Browning  v.  Sire,  33  Misc.  503,  68 

as    trustee    etc.    v.    McQuaide,    24  N.  Y.   Supp.  375;  Baier  v.  Kelley, 

Misc.  17,  53  N.  Y.  Supp.  97 ;  Eid-  55  Misc.  368,  106  N.  Y.  Supp.  552. 
lits,  as  ex'r.   trustee    etc.    v.    Lan-  ^8  See  Ryan  v.  Illinois    Trust    & 

caster,  40  App.  Div.  446,  59  N.  Y.  Savings  Bank,  199  111.  76,  64  N.  E. 

Supp.  54;    United  States  Life  Ins.  1085;  Townsend  v.  Wilson,  155  111. 

Co.  V.  Ettinger,  32  Misc.  378,  66  N.  App.  303. 
Y.  Supp.  1 ;  Grayhill  as  trustee  etc.  29  Kerr  on  Rec.  4. 

V.  Heylman,  123  N.  Y.   Supp.  622;  ^^  Owen  v.  Homan.  4  H.  L.  1032; 

Bank  of  Woodland  v.  Stephens  as  Gray  v.  Chaplin,  2  Russ.  145, 


1120  MORTGAGE    FORECLOSURES.  [§    763 

appears  that  the  property  is  in  danger  of  being  lost  or  mater- 
ially injured  before  the  final  judgment  is  entered  in  the 
action. ^^  In  some  cases,  the  propriety  of  appointing  a  re- 
ceiver cannot  be  determined  until  the  trial. ^^  As  a  general 
rule,  a  receiver  will  be  appointed  in  every  case  where  the 
interests  of  the  parties  seem  to  require  it.^^ 

In  no  case  of  a  mortgage  foreclosure  should  a  receiver  be 
appointed,  if  it  is  clear  that  on  a  forced  sale  of  the  mort- 
gaged property,  it  will  bring  an  amount  sufficient  to  pay  the 
debt,  costs  and  expenses  of  the  suit;^^  nor  in  general,  if  the 
mortgagor,  or  other  party  personally  liable  for  the  payment 
of  the  debt,  is  solvent.^^  But  an  application  should  be  denied 
on  the  merits  only,  and  not  on  merely  technical  grounds.'^ 

The  appointment  of  a  receiver  must  in  all  cases  be  dis- 
pensed with,  if  the  defendant,  who  is  in  possession  of  the 
premises,  gives  security  to  account  for  the  rents  and  profits, 
in  case  there  is  a  deficiency  upon  the  sale  under  the  decree 
of  foreclosure." 

In  determining  whether  a  receiver  of  the  rents  and  profits 
of  mortgaged  premises  shall  be  appointed,  the  court  must  deal 
with  the  cause  as  it  appears  from  the  pleadings  and  evidence 
and  stands  upon  the  record.^'     If  the  court  is  satisfied  from 

^^  Hamilton     v.     The     Accessory  ^^  Patten  v.  Accessory  Transit  Co. 

Transit  Co.  3  Abb.  (N.  Y.)  Pr.  255,  4  Abb.   (N.  Y.)    Pr.  235;  Evans  v. 

13    How.    (N.    Y.)    Pr.    108.     See  Coventry,  5  DeG.  M.  &  G.  911,  31 

post,  §  797.  Eng.  L.  &  Eq.  436. 

32  Verplank    v.    Caines,    1    Johns.  ^7  5^3    jf^g     Qq     y     Stebbins,    8 
Ch.   (N.  Y.)   57.  Paige    Ch.    (N.  Y.)   565;  Bank  of 

33  Crane  v.  McCoy,  1  Bond.  C.  C.  Ogdcnsburg  v.  Arnold,  5  Paige  Ch. 
422.  (N.  Y.)   38;  Frelinghuysen  v.  Col- 

^^Shotwell  V.  Smith,  3  Edw.  Ch.  den,  4  Paige  Ch.  (N.  Y.)  204.     See 

(N.  Y.)  588;  Burlingame  v.  Farce,  post,  §  801. 

12  Hun  (N.  Y.)  144;  Pullan  v.  Cin-  ^^  Silver  v.  Norwich,  3  Swans.  112 

cinnati  &  C.  A.  L.  R.  R.  Co.  4  Biss.  n;    Skinner's    Society  v.  Irish  So- 

C.  C.  35.  ciety,   1    M.   &    C.    164 ;    Evans    v. 

s^  Syracuse    City    Bank    v.    Tall-  Coventry,  5  DeG.  M.  &.  G.  911,  918, 

man,  31  Barb.  (N.  Y.)  201 ;  Jenkins  31  Eng.  L.  &  Eq.  436. 
V.    Hinman,    5   Paige  Ch.    (N.   Y.) 
309. 


§    765]  RECEIVER.  1121 

the  evidence  before  it,  that  it  is  necessary  or  expedient  to 
preserve  the  property  and  to  accumulate  the  rents,  issues  and 
profits  thereof  until  the  trial,  a  case  will  be  made  out  for  the 
appointment  of  a  receiver.^^ 

§  764.  Modes  of  appointment. — The  appointment  of  a 
receiver  may  be  made  in  either  of  three  ways:  (1)  He  may 
be  appointed  by  an  order  made  directly  by  the  court  on  a 
motion  for  a  receiver,  by  naming  the  person  to  be  receiver, 
prescribing  the  amount  of  his  bond  and  the  number  of  his 
sureties,  and  stating  his  duties  in  general  terms;  or,  if  the 
decision  of  the  court  is  reserved  on  the  argument  of  the 
motion,  and  is  filed  subsequently,  then,  by  giving  a  brief  gen- 
eral direction  in  the  decision  as  to  the  form  of  the  order, 
naming  the  receiver  in  blank,  to  be  filled  in  by  the  judge  him- 
self, if  the  parties  do  not  agree  upon  a  receiver  on  notice  of 
settlement;*"  (2)  the  appointment  of  a  receiver  may  also 
be  made  on  the  confirmation  of  the  report  of  a  referee  *^  ap- 
pointed by  the  court  to  hear  the  application  and  to  report  a 
proper  person;*^  (3)  it  may  be  made  by  a  referee  authorized 
by  the  court  to  appoint  a  receiver.*^  The  latter  was  formerly 
the  more  usual  course  and  practice.** 

§  765.  Jurisdiction  of  the  court  to  appoint  a  receiver. — 
A  court  has  no  jurisdiction  to  appoint  a  receiver  except  in 

^^ Hugonin    v.    Basely,    13    Ves.  ^Attorney-General    v.    Bank    of 

107;     Davis     v.     Marlborough,     2  Columbia,  1  Paige  Ch.  (N.  Y.)  511, 

Swans.    138;    Owen    v.    Hainan,    3  2  Barb.  Ch.  Pr.  (2d  ed.)  311,  312. 

Mac.  &  G.  412,  4  H.  L.  1033 ;  Whit-  «  The  selection  and  appointment 

worth  V.  Whyddon,  2  Mac.  &  G.  55 ;  of  a  receiver,  and  the  taking  of  se- 

Glegg  v.  Fishwick,  1  Mac.  &  G.  299 ;  curity   from  him,   are   proper   mat- 

Meyer  v.  Thomas,  131  Ala.  Ill,  30  ters  of  reference  under  the  Code,  as 

So.  89.  they  were  under  the  former  prac- 

*°  1  VanSant.  Eq.  Pr.  405.  tice      in      chancery.        Wetter      v 

"The  referee  is  a  substitute   in  Schlieper,  7  Abb.  (N.  Y.)  Pr.  92. 

New  York  for  the  former  master  in  **  2  Wait  Pr.  230. 
chancery.      Wetter   v.    Schlieper,   7 
Abb.   (N.  Y.)   Pr.  92. 

Mortg.  Vol.  II.— 71. 


1122  MORTGAGE    FORECLOSURES.  [§    765 

an  action  which  is  pending,*^  unless,  perhaps,  in  a  case  where 
the  defendant  designedly  avoids  service  of  the  process.^^  A 
judge  has  no  power  in  vacation  to  appoint  a  receiver ;  ^'^  neither 
has  a  clerk  of  the  court  power  to  approve  a  receiver's  bond 
in  vacation.*^  A  court  commissioner  has  no  jurisdiction  to 
appoint  a  receiver. ^^  Neither  should  a  receiver  be  appointed 
by  a  judge  in  chambers.  The  appointment  must,  in  all  cases, 
be  made  by  the  court. ^° 

Where  property  has  been  lawfully  placed  under  the  cus- 
tody and  control  of  a  receiver  by  a  court  having  authority 
to  appoint  him,  no  other  court  will  have  any  right  to  inter- 
fere with  such  receiver,  unless  it  is  some  court  which  has  a 
direct  supervisory  control  over  the  court  under  whose  pro- 
cess the  receiver  first  took  possession,  or  which  has  a  superior 
jurisdiction  in  the  premises."  Where  a  state  court,  with  full 
jurisdiction,  has  properly  appointed  a  receiver  and  he  is  in 
possession  of  the  property,  a  federal  court  will  have  no  such 
superior  jurisdiction  or  supervisory  power  as  to  warrant  its 
interference  with  such  receiver's  custody  and  control  of  the 
property ;  ^^  and,  consequently,  a  United  States  court  will  not 
appoint   a  receiver   to   take  possession   of   property   already 

^^  Hardy  V.   McClellan,   53   Miss.  ^^  Ireland  v.  Nichols,  7  Robt.  (N. 

507;    Anon,    1    Atk.    489;    Wyatfs  Y.)  476,  37  How.  (N.  Y.)  Pr.  22. 

Prac.  Reg.  356.  ^^  Buck  v.   Colbath,  70  U.   S.    (3 

^^Sandford   v.    Sinclair,   3    Edw.  Wall.)    334,    18    L.    ed.    257.     See 

Ch.  (N.  Y.)  393;  Quinn  v.  Gunn,  1  Freeman  v.  Howe,    65    U.    S.    (24 

Hogan,  75.  How. )  450,  16  L.  ed.  749 ;  Taylor  v. 

^"^  Newman  v.  Hammond,  46  Ind.  Carryl,  61    U.    S.    (20    How.)    583, 

119.     It  was    said   by   the    supreme  594-597,   15  L.   ed.   1028;    Peak    v. 

court  of   the  United  States   in  the  Phipps,  55   U.    S.    (14   How.)    368, 

case  of  Hammock  v.  Loan  &  Trust  374,    14    L.    ed.    459 ;     Wiswall    v. 

Co.    105   U.   S.    (15    Otto),   77,   26  Sampson,  55  U.  S.   (14  How.)   52, 

L.  ed.  1111,  that  a  judge  of  a  circuit  66,  14  L.  ed.  322;  Williams  v.  Bene- 

court   of   Illinois  cannot  appoint  a  diet,  48  U.   S.    (8  How.)    107,   112, 

receiver  in  vacation.  12  L.  ed.  1007;  Peck  v.  Jenness,  48 

'^^  Newman  v.  Hammond,  46  Ind.  U.    S.    (7    How.)    612,    625,    12    L. 

119.  ed.  841;  In  re  Clark,  4  Ben.  D.  C. 

49  Quiggle    v.    Trumbo,    56    Cal.  88,  97-98. 

626  iz  Davis  v.  Alabama  &  F.  R.  R. 


§    766]  RECEIVER.  1123 

ordered  to  be  delivered  to  a  receiver  appointed  by  a  state 
court.®^ 

A  receiver  appointed  by  a  state  court  over  mortgaged 
premises  in  an  action  for  foreclosure,  cannot  be  dispossessed 
or  interfered  with  by  an  assignee  in  bankruptcy,  subsequently 
appointed  in  a  federal  court  over  the  mortgagor's  estate,^* 
without  first  liquidating  the  debt,  the  possession  of  the  re- 
ceiver being  regarded  as  the  possession  of  the  mortgagee. ^^ 

§  766.  Doctrine  in  various  states. — In  California,  a  re- 
ceiver may  be  appointed  by  the  court  in  which  the  action 
is  pending,  or  by  a  judge  thereof  ;^^  but  a  county  judge  can- 
not appoint  a  receiver  in  a  case  pending  in  a  district  court." 
It  is  said  that  under  the  Connecticut  Act  of  1867,  the  judge 
should  first  make  an  express  finding,  that  it  is  just  and  rea- 
sonable that  a  receiver  should  be  appointed.^'  Under  the 
constitution  and  laws  of  Florida,  a  receiver  cannot  be  ap- 
pointed by  the  judge  of  one  circuit  to  take  possession  of  prop- 
erty in  another  circuit. ^^  The  powers  of  the  courts  of  Indiana 
in  appointing  receivers,  are  the  same  under  the  Code  as  under 
the  general  rules  of  equity,  and  the  power  will  be  exercised 
for  the  same  purposes  and  in  the  same  emergencies.®" 

In  Kentucky,  in  cases  specified  in  the  Code  of  Practice,  a 
receiver  may  be  appointed  by  the  court. ®^  In  Michigan,  a 
court  of  equity  cannot  appoint  a  receiver  except  in  cases  where 
such  appointment  is  allowed  by  the  compiled  laws  of  the 
state ;  ®^  there  is  no  statute  authorizing  such  a  court  to  make 

Co.  1  Woods  C.  C.  661 ;  In  re  Clark,  56  Cal.   Prac.  Act,  §  651. 

4  Ben.  D.  C.  88;  Alden  v.  Boston  ^^  Ruthraiiff  v.  Kresz,  13  Cal.  639. 

H.  &  E.  R.  R.  Co.  5  Bankr.  Reg.  ^^  Bostwick    v.    Isbell,    41    Conn. 

230.     But   see   contra,   In   re   Mer-  305. 

chants'  Ins.  Co.  3  Biss.   C.  C.   162.  59  State  v.  Jacksonville,  P.  &  M. 

5^  Blake  v.  Alabama  &  C.  R.  R.  R.  R.  Co.  15  Fla.  201. 

Co.  6  Bankr.  Reg.  331.  ^^  Bitting  v.  TenEyck,  85  Ind.  357. 

^^  Davis  V.  Alabama   &  F.  R.  R.  ei  Kentucky  Civil  Code,  §  328. 

Co.  1  Woods  C.  C.  661.  62  Mich.  Comp.  L.  §  5070. 

^^  Marshall  v.  Knox,  83  U.  S.  (16 
Wall.)   551,  21   L.  ed.  481. 


1124  MORTGAGE    FORECLOSURES.  [§    767 

an  ex  parte  order  appointing  a  receiver  to  take  possession  of 
real  estate  under  a  foreclosure,  even  though  the  parties  them- 
selves agree  upon  a  receiver  under  the  terms  of  the  mort- 
gaged^ Under  the  Mississippi  Code  of  1880,  a  circuit  judge 
has  no  power  to  appoint  a  receiver  in  a  case  pending  in  the 
chancery  court,  either  in  vacation  or  during  a  term.®*  The 
circuit  court  of  Missouri  has  power  to  appoint  a  receiver  in 
the  mortgage  foreclosure.®^  And  in  Nebraska  a  district  judge 
has  jurisdiction  to  appoint  a  receiver.®® 

§  767.  Appointment  of  receiver  by  federal  court. — A 

state  court  has  no  jurisdiction  to  appoint  a  receiver  in  an  ac- 
tion to  foreclose  a  mortgage,  where  the  premises  were,  at  the 
time  of  the  commencement  of  the  action,  in  the  hands  of  a 
receiver  appointed  by  a  federal  court  having  jurisdiction  to 
make  such  appointment ;  and  the  fact  that  the  lien  which  the 
receiver  was  appointed  to  enforce,  is  prior  or  subsequent  to 
the  one  sought  to  be  enforced  in  the  state  court,  will  not  in 
any  way  affect  the  rule.®''^ 

A  court  of  chancery  should  not  appoint  a  receiver  pending 
a  demurrer  to  its  jurisdiction;  ®^  nor  if  the  foreclosure  is  being 
defended  on  probable  grounds.®^  But  in  order  to  guard 
against  the  abuse  of  dilatory  pleas,  or  any  irreparable  mis- 
chief, the  court  may  order  an  immediate  trial  of  the  action.'® 

§  768.  Manner  of  appointing  receiver — Motion  or  pe- 
tition.— In  an  action  to  foreclose  a  mortgage  a  receiver 
may  be  appointed  on  either  a  motion  or  a  petition.    The  appli- 

63  Haseltine  v.  Granger,  AA  Mich.  v.  Milwaukee  &  M.  R.  R.  Co.  20 

503.  Wis.  165,  88  Am.  Dec.  735. 

^^  Alexander  v.  Manning,  58  Miss.  ^^  Ewing  v.  Blight,  3  Wall.  Jr.  C. 

634.  C.    139. 

6^  Tuttle,  as  assignee,  etc.  v.  Blow,  ^^  Shepherd  v.  Murdoch,  2  Molloy, 

163  Mo.  625,  63  S.  W.  839.  531 ;  Darcy  v.  Blake,  1  Molloy,  247. 

^^  Morris  v.  Linton,  62  Neb.  731.  "^^  Ewing  v.  Blight,  3  Wall.  Tr.  C. 

87  N.  W.  958.  C.  139. 

^T  Milwaukee  &  St.  P.  R.  R.  Co. 


§    768]  RECEIVER.  1125 

cation  may  be  heard  on  affidavits  or  on  oral  testimony,  and 
the  appointment  will  be  very  much  in  the  discretion  of  the 
court.'^  The  court  may  also  appoint  a  receiver  upon  its  own 
motion  in  a  case  requiring  it.'^ 

The  motion  for  the  appointment  of  a  receiver  may  be 
made  on  petition,  if  there  should  be  occasion  for  such  ap- 
pointment before  the  complaint  is  actually  served ;  '^  the  hear- 
ing on  such  petition  may  be  held  in  chambers.''^*  Under  the 
New  York  practice,  the  motion  for  a  receiver  must  be  made 
at  a  special  term  of  the  court,'^  in  the  county  in  which  the 
action  is  triable,'^  and  by  a  plaintiff  in  the  action,  a  motion 
by  a  defendant  being  irregular,"  except,  perhaps,  where  a 
cross-complaint  is  filed  and  made  the  basis  of  the  motion.''® 

The  duty  of  the  court  upon  a  motion  for  a  receiver  in  a 
mortgage  foreclosure,  is  merely  to  protect  the  property  and 
to  accumulate  the  rents,  issues  and  profits  until  the  deter- 
mination of  the  suit.'^  It  has  long  been  the  practice  on  a 
motion  for  a  receiver  in  such  cases  not  to  look  at  junior  mort- 
gagees farther  than  to  see  that  their  rights  are  protected. ®° 
The  court  will  not,  on  such  a  motion,  encourage  any  attempt 
to  obtain  an  intimation  of  its  decision  on  questions  involved  in 
the  merits  of  the  action.®^  The  court  is  bound  to  express  an 
opinion  only  so  far  as  may  be  necessary  to  show  the  grounds 
on  which  the  motion  for  a  receiver  is  decided ;  ®^  it  is  the 
duty  of  the  court  to  confine  itself  strictly  to  the  appointment 
of  a  receiver,  and  not  to  go  into  the  merits  of  the  case." 

71  Hursh  V.  Hursh,  99  Ind.  500.  1  VanSant.  Eq.  Pr.  402.     See  post, 

'2  O'Mahoney  v.  Belmont,  62  N.  §  807. 

Y.  133.  '^  Blackeney  v.  Dufaur,  15  Beav. 

73  VanSant,  Eq.   Pr.  402.  42. 

74  Kilgore  v.  Hair,  19  S.  C.  486.  so  Norway  v.  Rowe,  19  Ves.  153 ; 

75  2  Barb.  Ch.  Pr.  (2d  ed.)  309,  n  Price  v.  Williams,  Coop.  Ch.  31; 
15.  Brooks  v.    Greathcd,    1   Jac.   &   W. 

76  Knickerbocker     Trust     Co.     v.  176. 

Oneonta,   C.    &   R.   S.   Ry.    Co.  41  81  Bates  v.  Brothers,  2  Sm.  &  G. 

Misc.  204,  83  N.  Y.  Supp.  930.  509. 

"^"^  Robinson  v.   Hadlcy,   11    Beav.  ^2  Kerr  on  Rec.  6,  7. 

614.  83  Skinner's  Company  v.  Irish  So- 

"^^  Waters  v.    Taylor,   15  Ves.    10.  ciety,  1  Myl.  &  Cr.  164;    Evans    v. 


1126 


MORTGAGE    FORECLOSURES. 


[§   769 


§  769.  Appointment    of    receiver    by    the    court. — The 

power  to  appoint  a  receiver  of  the  rents  and  profits  of  mort- 
gaged premises  accruing  pending  a  foreclosure,  was  inherent 
in  the  court  of  chancery  before  the  adoption  of  the  New 
York  Code  of  Procedure.  It  was  continued  by  that  Code,** 
and  has  been  re-enacted  by  the  provisions  of  the  Code  of  Civil 
Procedure,*^  defining  cases  in  whicli  receivers  may  be  ap- 
pointed.'^ 

Courts  of  equity  have  power  to  appoint  receivers  in  mort- 
gage foreclosures  and  to  authorize  them  to  take  possession 
of  the  mortgaged  property,*'''  whether  it  is  in  the  personal 
possession  of  the  defendant  or  of  his  agents  or  tenants.** 
The  appointment  of  a  receiver  is  an  ordinary  exercise  of 
appropriate  chancery  powers;*^  and  there  are  very  few  cases 
in  which  a  court  of  equity  will  not  have  power  to  interfere 
by  appointing  a  receiver.®" 

This  jurisdiction  has  been  assumed  by  the  court  of  chan- 
cery for  the  advancement  of  justice,  and  is  founded  on  the 
inadequacy  of  the  remedies  afforded  by  courts  of  ordinary 
jurisdiction;  ®^  and  on  the  showing  of  a  proper  case  the  court 
will  ex  debito  justitice  appoint  a  receiver .^^ 


Coventry,  5  D.  M.  &  G.  918;  Blake- 
ney  v.  Dufaiir,  15  Beav.  42. 

84  §  244. 

85  §  713. 

86  See  Hollenbeck  v.  Donnell,  94 
N.  Y.  342;  Latimer  v.  Moore,  4 
McL.  C.  C.  110. 

87  A  court  may  appoint  a  receiver 
on  its  own  motion  in  cases  requir- 
ing it.  O'Mahoney  v.  Belmont,  62 
N.  Y.  133. 

88  Where  the  property  is  in  the 
possession  of  a  tenant  under  a 
lease,  such  tenant  must  be  made  a 
party  to  the  action,  or  he  will  not 
be  afifected  by  nor  be  subject  to  the 
order  appointing  the  receiver.  See 
ante,  §  177. 

89  Courts  of  equity    have    power 


to  appoint  receivers  for  the  purpose 
of  protecting  and  securing  the 
property  which  is  the  subject  of 
litigation.  Battle  v.  Davis,  66  N.  C. 
252.  See  Bank  of  Mississippi  v. 
Duncan,  52  Miss.  740;  The  Wharf 
Case,  3  Bland  Ch.  (Md.)  361 ;  IVil- 
liamson  v.  Wilson,  1  Bland  Ch. 
(Md.)  418,  421. 

90  See  Bainbrigge  v.  Baddeley,  3 
Mac.  &  G.  419. 

^'^Skip  V.  Harwood,  3  Atk.  564; 
Stitwell  V.  Williams,  6  Madd.  49; 
Davis  V.  Marlborough,  2  Swanst. 
165;   Mitf.   PI.   145. 

92  Hopkins  V.  Canal  Proprietors, 
L.  R.  6  Eq.  447.  See  Williamson  v. 
Wilson,  1  Bland  Ch.  (Md.)  420; 
Cupit  V.  Jackson,  13  Price  721,  734. 


§    771]  RECEIVER.  1127 

§  770.  On  what  papers  application  for  receiver  made. — 
A  motion  for  the  appointment  of  a  receiver  is  generally  made 
on  the  complaint  of  the  plaintiff;  but  it  may  be  made  on  affi- 
davits before  the  complaint  is  served,  when  the  plaintiff  can 
clearly  satisfy  the  court  that  he  has  an  equitable  claim  to  the 
property,  and  that  a  receiver  is  necessary  to  preserve  it  from 
loss.^'  When  affidavits  are  used,  they  should  show  such  facts 
and  circumstances  as  may  be  necessary  to  sustain  the  appoint- 
ment; copies  of  such  affidavits  should  be  served  with  the 
notice  of  motion. ^^  If  the  plaintiff  uses  affidavits,  the  defend- 
ant may  read  counter  depositions.^^ 

§  771.  Notice  of  application  for  receiver. — As  a  rule,  a 
court  of  equity  will  have  no  jurisdiction  of  a  motion  for  the 
appointment  of  a  receiver  in  a  mortgage  foreclosure,  unless 
notice  of  such  motion  has  been  served  upon  all  the  parties 
adversely  interested.^®  Instead  of  a  notice  of  motion,  an 
ex  parte  order  to  show  cause  may  be  obtained;  copies  of  the 
papers  intended  to  be  used  on  the  motion  and  of  the  order 
to  show  cause,  should  then  be  served  on  each  of  the  defend- 

93  2  Barb.  Ch.  Pr.   (2u  ed.)  309-  973;  Dasian  v.  Meyer,  66  App.  Div. 

310;  Metcalfe  v.  Pulvertoft.  1  Ves.  575,  73  N.  Y.  Supp.  328.     It  is  said 

&  B.   182;  Duckworth  v.   Trafford,  in  Bostwick  v.  Isbell,  41  Conn.  305. 

18  Ves.  283.  that  the  powers  given  to  a  receiver 

^^  Goodyear  v.  Betts,  7  How.  (N.  by  the  Connecticut  Act  of  1867,  are 

Y.)  Pr.  187;  Austin  v.  Chapman,  11  so  great  that,  if  the  act  is  to  be  con- 

N    Y.  Leg.  Obs.  103  Edw.  on  Rec.  strued  as  intending  to  authorize  the 

77;  1  Van  Sant.  Eq.  Pr.  402.  appointment     without      notice,      it 

95  Edw.  on  Rec.  66;  2  Barb.  Ch.  should  be  held  to  be  void  and  con- 
Pr.  (2d  ed.)  310.  trary  to  the  principles    of    natural 

96  Whitehead  v.  Wooten,  43  Miss.  justice. 

523;  Vause  v.  Wood,  46  Miss.  120;  A   receiver   appointed   in   supple- 

Belknap   Savings  Bank    v.    Lamar  mentary  proceedings  is  not  an  ad- 

Land  &  Canal  Co.  28  Colo.  326,  64  verse  party  upon  whom  notice  need 

Pac.  212,  N.  Y.  Code,  Civ.  Proc.  §  be    served   of   the    motion    for   the 

714;  Compare  Hardy  v.  McClellan,  appointment  of  a  receiver  in  a  fore- 

53  Miss.  507.     See  Jarmulowsky  v.  closure  action.    Grover  v.  McNeely, 

Rosenbloom,  125  App.  Div.  542.  109  72  App.   Div.  575,  76  N.  Y.  Supp. 

N.  Y.  Supp.  968;  Coleman  v.  Good-  559. 
man,  37  Misc.  517,  75  N.  Y.  Supp. 


1128  MORTGAGE    FORECLOSURES,  [§    772 

ants.^''  Where  the  complaint  has  not  been  served,  and  it 
is  intended  to  base  the  motion  on  that  also,  a  copy  thereof 
should  be  served  with  the  notice  of  motion. ^^ 

The  notice  of  motion  for  the  appointment  of  a  receiver 
must  be  served  like  any  other  notice  of  motion,^  by  deliver- 
ing copies  thereof  to  all  the  necessary  and  interested  parties.^ 
The  notice  must  express  concisely,  but  clearly,  the  object  of 
the  application,  for,  as  a  general  rule,  the  court  will  not  ex- 
tend the  order  beyond  the  scope  of  the  notice.^ 

When  no  serious  injury  can  result  to  the  property  involved 
in  the  controversy  from  the  delay,  notice  of  motion  should 
always  be  given  to  adverse  parties  before  a  receiver  is  ap- 
pointed ;  ^  yet  a  receiver  may  be  appointed  without  notice 
where  the  exigencies  of  the  case  require  it,*  But  a  case  of 
great  urgency  must  be  shown  to  justify  an  appointment  made 
without  notice.*  Where  the  mortgage  expressly  provides  that 
a  receiver  may  be  appointed  without  notice,  notice  is  not  re- 
quired.^ 

Where  an  order  has  been  made  permitting  service  by  publi- 
cation, the  court  may  in  its  discretion,  appoint  a  temporary 
receiver  and  preserve  the  property,  without  notice,  or  upon  a 
notice  given  by  publication  or  otherwise,  as  the  court  thinks 
properJ 

§  772.  Appointment  of  receiver  on  ex  parte  appli- 
cation.— It  is  the  settled  practice  of  the  supreme  court  of 
New  York,  as  it  was  of  the  late  court  of  chancery,  not  to 
allow  the  appointment  of  a  receiver  ex  parte,  except  in  those 
cases  where  the  defendant  is  without  the  jurisdiction  of  the 

97  1  VanSant.  Eq.  Pr.  403.  3  state  v.  Jacksonville,  P.  &  M.  R. 

98  1  VanSant.  Eq.  Pr.  403.  R.  Co.  15  Fla.  201. 

99  2  Barb.  Ch.  Pr.    (2d  ed.)   310.  ^  Hardy    v.    McClcUan,    53    Miss. 
^  See  Baring  v.   Moore,  5    Paige  507. 

Ch.    (N.    Y.)    48,    521;    Buxton    v.  ^  State  v.  Jacksonville,  P.   &  M. 

Monkhouse,  Coop.  Ch.  41,  2  Barb.  R.  R.  Co.  15  Fla.  201. 
Ch.   Pr.    (2d  ed.)   310.  6  n.    Y.    Code    Civ.    Proc.    §   714. 

2  Edw.  on  Rec.  77.  7  N.  Y.  Code  Civ.  Proc.  §  714. 


§    773]  RECEIVER.  1129 

court '  or  cannot  be  found,  having  fraudulently  hidden  him- 
self for  the  purpose  of  avoiding  a  personal  service  of  the 
summons,®  or  where,  for  some  reason,  it  becomes  absolutely 
necessary  for  the  court  to  interfere  before  there  is  time  to 
give  notice  to  the  adverse  party,  in  order  to  prevent  the 
destruction  of,  or  a  serious  injury  to  the  property,^"  in  which 
cases  a  receiver  may  be  appointed  ex  parte}^  Where  it  is 
proper  to  appoint  a  receiver  ex  parte,  the  particular  circum- 
stances which  render  such  a  summary  proceeding  necessary, 
should  be  distinctly  stated  in  the  affidavits  or  in  the  petition 
on  which  the  application  is  made.^'^ 

§  773.  What  the  application  must  show. — To  author- 
ize the  appointment  of  a  receiver,  the  complaint  or  affidavits 
must  show  a  cause  for  it  by  stating  the  facts  which  make 
such  appointment  necessary.^'  In  the  complaint,  or  in  the 
petition  for  the  appointment  of  a  receiver  in  a  mortgage  fore- 
closure, the  plaintiff  must  show  that  the  premises  are  not 
of  sufficient  value  to  satisfy  his  debt  and  the  costs  of  the 
suit,  and  that  the  mortgagor,  or  other  party  who  is  person- 
ally liable  for  the  payment  of  the  mortgage  debt,  is  irrespon- 
sible and  unable  to  pay  an  expected  deficiency.^*    If  danger  to 

8  See  Fletcher  as  trustee,  etc.  v.  hold  that  a  judge  in  chambers,  upon 
Krupp,  35  App.  Div.  586,  55  N.  Y.  an  ex  parte  application,  may  ap- 
Supp.  146.  point  a  receiver.     See  Real  Estate 

9  Sandford  v.  Sinclair,  8  Paige  Associates  v.  San  Francisco  Super- 
Ch.    (N.  Y.)   373,  aff'g  3  Edw.  Ch.  ior  Court,  60  Cal.  223. 

(N.  Y.)    393;   Gibson  v.  Martin,  8  ^^  Verplank  v.  Mercantile  Ins.  Co. 

Paige  Ch.    (N.  Y.)   481;   Verplank  2  Paige  Ch.  438;  People  v.  Albany 

V.  Mercantile  Ins.  Co.  2  Paige  Ch.  &  S.  R.  R.  Co.  38  How.    (N.  Y.) 

(N.  Y.)   438;  People  v.  Norton,  1  Pr.   228,   57   Barb.    (N.   Y.)    204,    1 

Paige  Ch.   (N.  Y.)   17.  Lans.  (N.  Y.)  308,  7  Abb.  (N.  Y.; 

10  People  V.  Albany  &  S.  R.  R.  Pr.  N.  S.  265. 

Co.  38  How.    (N.  Y.)    Pr.  228,  57  ^^  Tomlinson    v    Ward,    2    Conn. 

Barb.  (N.  Y.)  204,  1  Lans.  (N.  Y.)  396. 

308,  7  Abb.  (N.  Y.)   Pr.  N.  S.  265.  ^'^  Sea    Ins.    Co.    v.    Stebbins,    8 

i^  Gibson  v.  Martin,  8  Paige  Ch.  Paige  Ch.    (N.  Y.)   565;  Harris  v. 

(N.  Y.)  481;  Sandford  v.  Sinclair,  United  States  Savings  Fund  &  In- 

8  Paige  Ch.    (N.  Y.)   373,  2  Barb.  vestment  Co.  146  Ind.  265,  45  N.  E. 

Ch.  Pr.  (2d  ed.)  311.     Some  courts  328. 


1130  MORTGAGE    FORECLOSURES.  [§    77'h 

the  property  is  not  alleged  in  the  complaint,  and  no  facts 
appear  in  the  affidavits,  showing  the  necessity  or  expediency 
of  appointing  a  receiver,  the  application  will  be  denied. ^^ 
The  facts  essential  to  the  appointment  of  a  receiver  need  not 
be  pleaded  in  the  complaint,  but  may  be  shown  by  affidavits. ^^ 
A  receiver  will  not  be  appointed  on  a  mere  allegation  that 
the  mortgaged  premises  are  not  sufficient  security  for  all 
"just  incumbrances  thereon."  "  Neither  will  one  be  appointed 
on  a  general  allegation  that  loss  will  ensue  if  a  receiver  is 
not  appointed,  unless  a  full  statement  of  the  facts  is  made.^* 
A  mere  allegation  of  danger  to  the  property  will  not  of 
itself  be  sufficient,  if  the  court  is  satisfied  that  a  loss  is  not 
probable.''^  An  application  for  a  receiver  pending  an  action 
for  foreclosure,  must  show  an  actual  interest  in  the  property 
and  that  such  interest  is  in  danger  of  being  lost,  or  other  facts 
which  would  warrant  the  interference  of  the  court.^°  An 
order  appointing  a  receiver  will  not  be  granted  where  the 
party  applying  for  it  does  not  establish  an  apparent  right 
to  the  property  in  litigation,  and  where  it  is  neither  alleged 
nor  shown  by  the  evidence  that  there  is  danger  of  waste  or 
injury  to  the  property,  or  loss  of  the  rents  and  profits  by  rea- 
son of  the  insolvency  of  the  adverse  party  in  possession.^^ 
The  application  must  also  show  who  is  in  possession,  as  a 
receiver  cannot  be  appointed  unless  the  person  in  possession 
of  the  mortgaged  premises  is  a  party  to  the  suit.^^    A  demand 

15  Baker  v.  Backus,  32  111.  79,  95 ;  &  G.  55.     See  Sickles  v.  Canary,  8 

IVhitworth  v.  Whyddon,  2  Mac.  &  App.  Div.  308,  40  N.  Y.  Supp.  948, 

G.  55;   Wright  v.  Vernon,  3  Drew,  75  N.  Y.   St.  Rep.  347. 

121;  Micklethwait  v.  Micklethwait  1  ^^  Goodyear  v.  Belts,  7  How.  (N. 

D.  &  J.  530;  Bowker  v.  Henry,  6  Y.)     Pr.    187.      See    McCarthy    v. 

L.   T.    N.    S.   43.     See   Grayhill  v  Peake,  9  Abb.  (N.  Y.)   Pr.  164,  18 

Heylman,   123  N.  Y.   Supp.  622.  How.    (N.   Y.)    Pr.   138;   Patten  v. 

^^  Commercial  Sav.  Bank  v.  Cor-  Access.  Trans.  Co.  4  Abb.  (N.  Y.) 

bett,  5  Sawy.  C.  C.  172.  Pr.  235,  13  How.  (N.  Y.)   Pr.  502; 

1'^  Warner  v.  Gouverneur's  Ex'rs.  Hamilton  v.   Access.    Trans.   Co.   3 

1  Barb.   (N.  Y.)  36.     See  Shotwell  Abb.  (N.  Y.)  Pr.  255,  13  How.  (N. 

V.  Smith,  3  Edw.  Ch.  (N.  Y.)  588.  Y.)  Pr.  108. 

18  Hanna  v.  Hanna,  89  N.  C.  68.  21  Twitty  v.  Logan,  80  N.  C.  69. 

19  Whitwortli  V.   Whyddon,  2  M.  22  ^g^    /„j     Cq     y.    Stebbins,    8 


§    774]  RECEIVER.  1131 

in  the  complaint   for  the  appointment  of  a  receiver  is   not 
necessary.^^ 

The  proceedings  should  be  in  such  a  state  as  to  enable  the 
judge  to  determine  who  is  to  receive  the  fund  which  the  re- 
ceiver may  bring  into  court. ^*  But  if  the  court  sees  that 
there  is  a  prima  facie  case  upon  the  record  for  the  appoint- 
ment of  a  receiver,  the  fact  that  the  record  is  not  perfect  in 
detail,  and  is  not  in  the  shape  it  should  be,  to  enable  the 
court  to  administer  complete  justice,  will  not  of  itself  defeat 
the  appointment,  especially  if  the  objection  is  merely  a  formal 
one  that  may  be  remedied  by  amendment. ^^  Where  the  mort- 
gage, by  its  terms,  pledges  the  income,  rents  and  profits  of 
the  mortgaged  premises  to  the  payment  of  the  debt,  the  mort- 
gagee need  not  conclusively  establish  a  right  to  recover  be- 
fore he  is  entitled  to  ask  for  the  appointment  of  a  receiver. 
If  he  shows  a  probable  right  to  recover,  and  that  the  debtor 
is  insolvent,  the  appointment  of  a  receiver  will  follow  as  a 
matter  of  course.^^ 

§  774.  Objections  to  appointment  of  receiver. — The  ob- 
jection that  other  persons  are  necessary  parties  to  the  suit 
is  no  bar  to  the  appointment  of  a  receiver.  If  such  parties 
are  necessary,  they  can  be  brought  in  afterwards.^"''  Objec- 
tions because  of  the  misjoinder  of  parties  or  of  the  multi- 
fariousness of  causes  of  action,  are  no  answer  to  an  appli- 
cation for  a  receiver,  if  sufficient  grounds  for  the  appoint- 
ment of  one  are  shown. ^^ 

A  mortgagor  who  has  sold  and  conveyed  the  mortgaged 
premises  subject  to  his  mortgage,  is  not  in  a  position  to  oppose 

Paige  Ch.   (N.  Y.)   565.     See  post,  ^"^  Barclay  v.   Quicksilver  Mining 

§  804.  Co.  9  Abb.   (N.  Y.)   Pr.  N.  S.  283. 

23  Commercial  Sav.  Bank  v.  Cor-  28  Evans  v.  Coventry,  5  D.  M.  & 
bett,  5  Sawy.  C.  C.  172.  G.  918;  Steele  v.  Cobham,  L.  R.  1 

24  Gray  v.  Chaplin,  2  Russ.  147.  Ch.   App.  325 ;  Major  v.  Major,  8 

25  Kerr  on  Rec.  11.  Jur.  797. 

26  DesMoines   Gas    Co.   v.    West, 
44  Iowa,  23. 


1132  MORTGAGE    FORECLOSURES.  [§    775 

the  appointment  of  a  receiver.^^  Where  the  parties  stipulate 
in  a  mortgage  that  a  receiver  may  be  appointed,  an  answer 
not  positively  sworn  to  will  not  constitute  a  sufficient  objec- 
tion to  an  appointment.'"  It  was  held  in  Thompson  v.  Selby,'^ 
that  where  the  original  bill  had  been  answered,  the  pendency 
of  a  plea  to  the  amended  bill  was  not  a  bar  to  a  motion  for 
the  appointment  of  a  receiver. 

§  775.  Appointment  of  receiver  by  referee  or  master. — 

The  selection  and  appointment,  or  proposal  for  appointment, 
of  a  receiver  and  the  taking  of  security  from  him.  are  proper 
matters  for  a  reference  under  the  New  York  Code  of  Civil 
Procedure,  as  they  were  under  the  former  practice  in  chan- 
cery.'^ In  general  practice  the  reference  is  usually  made  to 
a  person  residing  in  the  same  county  as  the  defendant,  in 
order  to  relieve  him  of  unnecessary  expenses  in  traveling;'' 
but  in  mortgage  foreclosures,  the  referee  should  reside  in  the 
county  where  the  land,  or  a  portion  of  it,  is  situated,  and 
where  the  action  is  pending. 

Whether  the  receiver  is  appointed  directly  by  the  court, 
or  through  the  medium  of  a  referee,  it  is  the  duty  of  the 
court  to  follow  the  rules  and  practice  of  the  court  of  chan- 
cery in  like  cases,  so  far  as  they  are  consistent  with  the  present 
course  of  procedure ;  '^  an  appointment  by  a  referee  under  the 
old  practice  will  be  void.'^  The  order  of  reference  should  re- 
quire the  usual  notice  of  hearing  to  be  given  to  the  adverse 
parties.  If  no  notice  is  given,  and  the  opposing  parties  volun- 
tarily appear  before  the  referee,  such  appearance  will  be  a 

29  The  Wall  Street  Fire  Ins.  Co.  33  Bank   of  Monroe  v.   Keeler,  9 

V.  Loud,  20  How.   (N.  Y.)   Pr.  95.  Paige  Ch.  (N.  Y.)  249. 

^0  Knickerbocker  Life  Ins.  Co.  v.  3*2  Barb.  Ch.   Pr.    (2d  ed.)   311, 

Hill,  2  Hun   (N.  Y.)  680.  n  19. 

31  12  Sim.   100.  35  iVcttcr    v.    Schlieper,    7    Abb. 

32  Wetter  v.  Schlieper,  7  Abb.  (N.  (N.  Y.)  Pr.  92. 
Y.)  Pr.  92 


§    776]  RECEIVER.  1133 

waiver  of  all  irregularities,  and  no  objection  can  be  taken 
to  the  proceedings.^® 

§  776.  Report  of  referee  or  master. — The  referee  or 
master  having  made  the  appointment,  or  selected  a  proper 
person  to  be  recommended  to  the  court  for  appointment  as 
receiver,  according  to  the  terms  of  the  order  of  reference, 
should  report  the  facts  to  the  court.^''  The  report  of  the 
referee  or  master  on  the  appointment  of  a  receiver  cannot 
be  excepted  to  and  need  not  be  confirmed. ^^  The  appointment 
of  a  receiver,  being  within  the  discretion  of  the  referee  or 
master, ^^  to  support  an  objection  thereto  and  to  induce  the 
court  to  interfere  with  his  appointment,  substantial  reasons 
for  such  objection  must  be  presented,*"  for  the  court  will  not 
order  the  referee  to  review  his  decision  except  on  special 
grounds." 

It  is  a  well  settled  rule  in  New  York,  that  a  court  will  not 
disturb  or  set  aside  the  appointment  of  a  receiver  by  a 
referee,  unless  the  person  selected  is  legally  disqualified,  or 
his  situation  is  such  as  to  induce  the  court  to  believe  that  he 
will  not  properly  attend  to  the  interests  of  the  parties.*^  The 
court  will  not  disturb  the  referee's  or  master's  decision  merely 
because  an  interested  party  may  think  that  a  better  selection 

^^  Wetter    v.    Schlieper,    7    Abb.  Schlieper,  7  Abb.   (N.  Y.)   Pr.  92; 

(N.  Y.)   Pr.  92.  Wynne    v.    Newborough,    15    Ves. 

3''2  Barb.  Ch.  Pr.   (2d  ed.)  317.  283;   Bowersbank   v.   Collasseau,   3 

38 /n    re    Eagle    Iron    Works,    8  Ves.    164;    Thomas    v.    Dawkin,    1 

Paige  Ch.  (N.  Y.)  385;  Thomas  v.  Ves.    Jr.    452,    3    Bro.    C.    C.    507; 

Dawkin,  1  Ves.  Jr.  452,  3  Bro.  C.  C.  Tharpe  v.  Tharpe,  12  Ves.  317. 

507 ;    Wilkins   v.    Williams,   3    Ves.  ^^  /,j    ^^    Eagle    Iron    Works,    8 

588.  Paige  Ch.   (N.  Y.)  385. 

89  Thomas  v.  Dawkin,  1  Ves.  Jr.  Mere  relationship  to  one  of  the 

452,   3    Bro.   C.   C.   507.     See   Ben-  parties   to  the  action   is  not  of   it- 

neson  v.  Bill,  62  111.  408.  self  a  sufficient  ground  for  the  re- 

^  Thomas  v.  Dawkin.  1  Ves.  Jr.  moval  of  a  receiver;  at  most,  it  is 

452,   3    Bro.   C.   C.   507 ;    Tharpe  v.  but  a  circumstance  to  be  taken  into 

Tharpe,  12  Ves.  317.  consideration  at  the  time  of  making 

*^  In    re    Eagle    Iron    Works,    8  the  appointment.     Wetter  v.  Schlie- 

Paige  Ch.   (N.  Y.)  385;   Wetter  v.  per,  7  Abb.  (N.  Y.)  Pr.  92,  93. 


1134  MORTGAGE    FORECLOSURES.  [§    777 

could  have  been  made  from  the  several  persons  proposed.*^ 
If,  hovv^ever,  the  court  should  order  the  referee  or  master  to 
review  his  decision,  the  parties  may  proceed  de  novo  by  pro- 
posing other  persons  for  the  receivership.*^ 

§  777.  Order  of  appointment  on  report  of  referee 
recommending  proper  person. — Where,  upon  an  appli- 
cation to  the  court  for  the  appointment  of  a  receiver,  a  referee 
or  master  is  ordered  to  report  a  suitable  person  to  be  ap- 
pointed and  to  approve  of  the  sureties  to  be  offered  by  him, 
the  appointment  will  not  be  complete  until  it  is  confirmed  by  a 
special  order  of  the  court.*^  The  party  procuring  such  an 
order  of  reference  should  give  the  adverse  parties  the  usual 
notice  to  attend  before  the  referee.'*^  A  voluntary  appearance 
before  the  referee  will,  however,  waive  all  irregularities  in 
the  notice.*' 

If  the  party  summoned  fails  to  appear,  the  referee  may 
proceed  ex  parte,  and  the  proceedings  will  not  be  open  to  re- 
view, unless  proper  cause  is  shown  and  the  costs  of  the  pro- 
ceedings are  paid.*' 

§  778.  Order  of  appointment  by  referee. — Where  the 
order  appointing  a  referee  empowers  him  to  appoint  a  re- 
ceiver and  to  approve  the  requisite  bond  for  him,  the  amount 
of  which  he  has  authority  to  fix,  an  order  for  the  confirmation 
of  the  report  will  not  be  necessary.*^    In  such  cases  the  referee, 

*3    In    re   Eagle   Iron    Works,   8  560;   Parker  v.    Williams,  4   Paige 

Paige  Ch.    (N.  Y.)   385.  Ch.   (N.  Y.)  439;  Hart  v.  Small,  4 

« Smith  on  Rec.  11,  2  Barb.  Ch.  Paige  Ch.    (N.  Y.)   288;  Robinson 

Pr.   (2d  ed.)   318.  v.  Nash,  1  Anst.  76. 

45  Tn    re    Eagle    Iron    Works,    8  *8  Edw.   on   Rec.  70,    1   VanSant. 

Paige  Ch.  (N.  Y.)  385.  Eq.  Pr.  408. 

^^  Wetter  V.  Schlieper,  7  Ahh.  (N.  *9/m    re    Eagle    Iron    Works,    8 

Y.)   Pr.  92.  Paige    Ch.    (N.    Y.)    385;    Bowers- 

^"^  Wetter  V.  Schlieper,  7  Ahh.  (N.  bank   v.    Collasseau,  3   Ves.    164,    1 

Y.)    Pr.   92.     See  Brasher  v.    Van  VanSant.  Eq.  Pr.  407,  2  Wait.  Pr. 

Courtlandt,  2  Johns.   Ch.    (N.   Y.)  235. 
242;  Nichols  v.   Nichols,  10  Wend. 


§  778] 


RECEIVER. 


1135 


after  appointing  the  receiver  and  approving  the  sureties  to 
be  given  by  him,  should  file  the  required  bond,^°  together 
with  his  report  of  the  appointment,  with  the  clerk  of  the 
court,  stating  in  his  report  that  he  has  approved  and  filed 
such  bond."  Upon  the  filing  of  such  report,  the  appointment 
of  the  receiver  will  be  complete,  and  he  may  immediately  enter 
upon  his  duties.*^ 

A  receiver  takes  title  to  the  property  from  the  time  of  his 
appointment.®^  As  between  the  parties  to  the  suit,  he  is  to 
be  considered  appointed  from  the  date  of  the  order  of  refer- 
ence.®* Either  party  may  have  the  appointment  of  a  receiver 
by  a  referee  reviewed  on  presenting  a  petition  to  the  court, 
on  notice  to  all  the  parties  interested,®®  setting  forth  the 
grounds  of  objection  and  praying  that  the  referee  be  directed 
to  review  his  report.®^  The  application  to  review^  the  appoint- 
ment of  a  referee  may  also  be  made  by  motion  supported  by 
affidavits. 

The  appointment  of  a  receiver  being  within  the  discretion 
of  the  referee  or  master, ®''  there  must  be  a  well-founded  ob- 
jection to  support  an  exception  thereto,®^  for  the  court  will 
not  order  the  referee  to  review  his  decision. except  for  special 
reasons,®^  and  the  court  will  not  interfere  with  the  appoint- 


so  1  VanSant.  Eq.  Pr.  407. 

512  Wait.  Pr.  235. 

52 /n  re  Eagle  Iron  Works,  8 
Paige  Ch.  (N.  Y.)  385;  Wetter  v. 
Schlieper,  7  Abb.  (N.  Y.)  Pr.  92; 
Lottimer  v.  Lord,  4  E.  D.  Smith 
(N.  Y.)  183,  191,  2  Wait.  Pr.  235. 

^^  Wilson  V.  Allen,  6  Barb.  (N. 
Y.)  543;  Lottimer  v.  Lord,  4  E.  D. 
Smith  (N.  Y.)  183,  191;  Rutter  v. 
Tallis,  5  Sandf.  (N.  Y.)  610. 

^^  Fairfield  v.  Weston,  2  Sim.  & 
S.  98. 

55  Objection  to  the  referee's  or 
master's  report  cannot  be  made  by 
exceptions.  Tyler  v.  Simmons,  6 
Paige  Ch.  (N.  Y.)  127;  Thomas  v. 
Dawkin,  1  Ves.  Jr.  452,  3   Bro.   C. 


C.  507;  Wilkins  v.  Williams,  3  Vas. 
588. 

56  In  re  Eagle  Iron  Works,  8 
Paige  Ch.  (N.  Y.)  385. 

57  Thomas  v.  Dawkins,  1  Ves.  Jr. 
452,  3  Bro.  C.  C.  507.  See  Benne- 
son  V.  Bill,  62  111.  408. 

58  Thomas  v.  Dawkin,  1  Ves.  Jr. 
452,  3  Bro.  C.  C.  507;  Tharpe  v. 
Thorpe,  12  Ves.  317. 

59  Wetter  v.  Schlieper,  7  Abb.  (N 
Y.)  Pr.  92;  In  re  Eagle  Iron 
Works,  8  Paige  Ch.  (N.  Y.)  385: 
Wynne  v.  Newborough,  15  Ves 
283 ;  Tharpe  v.  Tharpe,  12  Ves.  317 
Bowershank  v.  Colasseau,  3  Ves 
164;  Thomas  v.  Dawkin,  1  Ves.  Jr 
452 


1136 


MORTGAGE    FORECLOSURES. 


[§  779 


ment  of  a  receiver  by  a  referee  unless  a  case  is  presented 
showing  that  the  person  appointed  is  disquahfied,^'*  or  that  his 
position  is  such  as  to  induce  a  behef  that  he  will  not  properly 
attend  to  the  interests  of  the  parties." 

§  779.  Order    of    appointment    by    court — Appeals. — 

When  the  appointment  of  a  receiver  is  made  by  the  court, 
the  penalty  of  the  bond  should  be  fixed  and  the  general  terms 
of  the  order  prescribed  at  the  time  it  is  granted.®^  The  form 
and  contents  of  the  order  appointing  a  receiver  must  be  deter- 
mined by  the  court.^^  The  judge  may  himself  draw  the  order, 
prescribing  all  of  its  details,  or  he  may  allow  the  form  of 
order  submitted  by  the  moving  party.^*  When  the  order  con- 
tains special  provisions,  it  is  customary  for  the  attorney  of 
the  moving  party  to  submit  a  copy  of  the  proposed  order  to 
the  attorney  for  the  adverse  party,  and  if  any  of  its  pro- 
visions are  objectionable,  to  make  an  application  to  the  judge 
in  court  or  at  chambers  for  a  settlement  of  the  terms  of  the 
order. ®^  The  attorney  opposing  the  order  may  propose  amend- 
ments to  be  submitted  to  the  judge  with  the  original  form 
for  settlement,^®  when  the  parties  cannot  otherwise  agree.*'' 
The   order, ®^    as    settled,    should   then   be   entered    by   the 


60  Wetter  v.  Schlieper,  7  Abb. 
(N.  Y.)  Pr.  92;  In  re  Eagle  Iron 
Works,  8  Paige  Ch.  (N.  Y.)  385; 
Wynne  v.  Newborough,  15  Ves.  283. 

61  Wetter  V.  Schlieper,  7  Abb.  (N. 
Y.)  Pr.  92;  In  re  Eagle  Iron 
PVorks,  8  Paige  Ch.  (N.  Y.)  385; 
Wynne  v.  Newborough,  15  Ves.  283, 
1  Barb.  Ch.  Pr.  674. 

62  2  Wait.  Pr.  230. 

63  It  is  said  to  be  the  duty  of  the 
attorney,  and  not  of  the  judge,  to 
see  that  the  order  is  proper.  La- 
Farge  v.  VanWagenen,  14  How. 
(N.  Y.)  Pr.  54,  57.  An  order  deny- 
ing the  appointment  of  a  receiver 
in     a     foreclosure     is     not     final. 


Beecher  V.  Marquette  &  Pac.  Roll- 
ing Mill  Co.  40  Mich.  307. 

64  1  VanSant.  Eq.  Pr.  406. 

65  If  the  terms  of  the  order  are 
settled  out  of  court,  and  the  order 
is  allowed  by  the  judge's  indorsing 
his  allocatur  upon  it,  it  must  then 
be  filed  and  entered.  1  VanSant. 
Eq.  Pr.  406. 

66  Not  to  the  clerk  as  formerly. 
Whitney  v.  Belden,  4  Paige  Ch. 
(N.  Y.)  140,  1  VanSant.  Eq.  Pr. 
406. 

67  IVanSant.  Eq.  Pr.  406;  2  Wait. 
Pr.  230,  §  5. 

68  Orders  granted  by  a  justice  ex- 
parte  in  chambers,  under  the  New 


§  779] 


RECEIVER. 


1137 


moving  party,®^  who  is  entitled  to  file  it  with  the  clerk  of 
the  court ; '°  copies  of  the  order  should  then  be  served  on  all 
the  parties  interested,"  because  such  parties  may  have  a  right 
to  appeal,  and  the  duration  of  such  right  will  be  limited  only 
from  the  time  of  the  service  of  a  copy  of  the  order  with 
a  notice  of  the  entry  thereof.'^  It  was  held  in  Farley  v. 
Farley,'^  that  the  moving  party  is  not  entitled  to  notice  from 
the  adverse  party  of  the  entering  of  such  order,  in  order  to 
limit  his  right  of  appeal  therefrom;  but  it  was  decided  in  the 
more  recent  case  of  Rankin  v.  Pine,'*  that  the  service  of  a 
written  notice  is  necessary,  even  when  the  appeal  is  taken 
from  a  judgment  entered  by  the  appellant  himself. 

An  appeal  must  be  taken  within  thirty  days  after  the 
written  notice  of  the  entry  of  the  order  has  been  given  to 
the  party  appealing.'''^  The  order  will  be  considered  as  entered 
from  the  time  of  its  delivery  to  the  clerk  for  that  purpose.''^® 
A  notice  of  the  entry  of  the  order  will  not  avail  to  limit  the 
time  of  appeal,  unless  it  is  in  writing,''''  and  is  such  as  to 


York  Code,  need  not  be  entered 
with  the  clerk.  Savage  v.  Relyea,  3 
How.  (N.  Y.)  Pr.  276,  1  Code  (N. 
Y.)  42. 

^9  The  order  must  be  entered  by 
the  prevailing  party  with  the  clerk 
of  the  court  where  the  papers  are 
filed.  Savage  v.  Relyea,  3  How. 
(N.  Y.)  Pr.  276,  1  N.  Y.  Code,  42. 
Should  the  successful  party  fail  to 
enter  the  order  within  twenty-four 
hours  after  it  is  granted,  the  unsuc- 
cessful party  may  enter  it;  or  any 
party  affected  by  such  order,  is  en- 
titled to  do  so  under  the  New  York 
Code.  Neither  party  can  have  any 
benefit  from  a  decision  of  the  court, 
until  the  order  on  such  decision  is 
drawn  and  entered.  Whitney  v. 
Belden,  4  Paige  Ch.  (N.  Y.)  140; 
Peet  V.  Cowenhoven,  14  Abb.  (N. 
Y.)  Pr.  56. 

Mortg.  Vol.  H.— 72. 


7°  Edw.  on  Rec.  66. 

'1  Whitney  v.  Belden,  4  Paige  Ch. 
(N.  Y.)  140. 

"^^ Rankin  v.  Pine,  4  Abb.  (N. 
Y.)  Pr.  309;  People  ex  rel.  Backus 
V.  Spalding,  9  Paige  Ch.  607;  Far- 
ley V.  Farley,  7  Paige  Ch.  (N.  Y.) 
40;  Tyler  v.  Simmons,  6  Paige  Ch. 
(N.  Y.)  127;  Jenkins  v.  Wilde,  14 
Wend.  (N.  Y.)  539. 

737  Paige  Ch.  (N.  Y.)  40. 

744  Abb.   (N.  Y.)   Pr.  309. 

75  N.  Y.  Code  Civ.  Proc.  §  1351. 

"76  Farley  v.  Farley,  7  Paige  Ch. 
(N.  Y.)  40,  42. 

"^"^  People  ex  rel.  Backus  v.  Spald- 
ing, 9  Paige  Ch.  (N.  Y.)  607;  Fry 
V.  Bennett,  7  Abb.  (N.  Y.)  Pr.  352. 
16  How.  (N.  Y.)  Pr.  402,  406,  2 
Bosw.  (N.  Y.)  684. 


1138  MORTGAGE    FORECLOSURES.  [§    780 

apprise  the  adverse  party  fully  of  the  whole  substance,  if  not 
of  the  very  details  of  the  order." 

§  780.  Contents  of  order  appointing  receiver — Powers 
defined — Property  described. — Where  the  application  for 
a  receiver  has  been  made  and  allowed,  care  should  be  taken 
in  drawing  the  order  for  his  appointment  that  it  fully  defines 
his  powers."  It  should  state  distinctly  on  the  face  of  it,  over 
what  property  he  is  appointed,®"  or  refer  to  the  pleadings  or 
some  paper  in  the  proceedings  which  describes  the  property, 
so  that  a  party  may  know  what  the  officer  of  the  court  is  in 
possession  of ;  ®^  otherwise,  he  cannot  hold  possession  of  the 
property.®^  It  sometimes  happens  that  the  court,  although  of 
the  opinion  that  the  moving  party  is  entitled  to  a  receiver,  will 
not  make  such  an  appointment  directly,  but  in  the  alternative 
requiring  that  the  demand  of  the  moving  party  be  satisfied, 
or  that  a  receiver  be  appointed.®^  The  order  for  a  receiver 
usually  directs  him  to  state  his  accounts  from  time  to  time, 
and  to  pay  the  balance  found  due  from  him  into  court  to 
the  credit  of  the  action,  to  be  there  invested  and  accumu- 
lated, or  otherwise  disposed  of,  as  the  court  may  think 
proper." 

If  a  receiver  is  appointed  on  behalf  of  several  incum- 
brancers, the  order  generally  contains  a  recital  that  the  ap- 
pointment is  to  be  without  prejudice  to  the  rights  of  the 
prior  incumbrancers  of  the  estate,  who  may  think  proper  to 

'8Fr3>  V.  Bennett,  7  Abb.  (N.  Y.)  271,  2  Barb.  Ch.  Pr.    (N.  Y.)   312; 

Pr.  352,  16  How.   (N.  Y.)   Pr.  402,  1   VanSant.  Eq.   Pr.  405;  High  on 

406,  2  Bosw.   (N.  Y.)   684;  Cham-  Rec.  (2d  ed.)  76,  §  87. 

pion    V.    Plymouth    Congregational  ^^  O'Mahoney  v.  Belmont.  62   N. 

Church,  42  Barb.    (N.  Y.)   441.  Y.   133. 

'9  Edw.  on  Rec.  66.  83  Curling  v.    Townsend,   19  Ves. 

80  Crow  V.   Wood,   13  Beav.  271;  628;    High    on    Rec.    (2d    ed.)    82, 
High  on  Rec.  (2d  ed.)  76,  §  87.  §   102. 

81  O'Mahoney  v.  Belmont,  62  N.  84  2  Dan.  Ch.  Pr.   1573. 
Y.    133;   Crow  v.   Wood,   13   Beav. 


§    781]  RECEIVER.  1139 

take  possession  of  the  premises  by  virtue  of  their  respective 
claims.  The  order  usually  directs  that  the  receiver,  out  of  the 
rents  and  profits  to  be  collected  by  him,  shall  keep  down  the 
interest  in  such  incumbrances,  according  to  their  priorities,  and 
be  allowed  the  same  in  passing  his  accounts.®^  If  the  mort- 
gagor is  in  possession  of  the  premises,  the  order  should  direct 
him  to  deliver  the  possession  thereof  to  the  receiver. ^^ 

§  781.  Proposal  of  names  for  receiver. — The  referee 
or  master  upon  a  reference  to  appoint  a  receiver  should 
designate  that  person  whom  he  deems,  all  things  considered, 
best  qualified  for  the  office,  without  regard  to  the  fact  that 
he  was  proposed  by  one  or  the  other  of  the  parties ;  "  under 
equal  circumstances,  the  party  obtaining  the  order  for  a 
receiver  has,  prnna  facie,  a  right  to  nominate  the  receiver.®^ 

In  proceedings  upon  a  reference  for  the  appointment  of  a 
receiver,  the  party  who  has  obtained  the  order  should  pre- 
sent to  the  referee  a  written  proposal  containing  the  names 
of  the  desired  receiver  and  his  sureties.  If  the  person  thus 
nominated  is  objectionable,  however,  another  person  may 
be  nominated  by  any  interested  party  by  a  counter-proposal.^^ 

^^  Smith    V.    Effingham,    2    Beav.  Pr.    (2d  ed.)   316;    1  VanSant.  Eq. 

232;  Lewis  v.  Zouche,  2  Sim.  388.  Pr.  407. 

86  Griffith  V.  Thapwel,  2  Vas.  Sr.  89  ,\  person  not  having  an  interest 

401 ;   Everett  v.   Belding,   22   L.   J.  in  the  action  cannot  propose  a  re- 

Ch.    75.      As    to   the    form    of    the  ceiver,  and  it  is  contrary  to  the  or- 

order,  see  Davis  v.  Duke  of  Marl-  derly    proceedings    of    a    court    of 

borough,  2  Swans.  113,  116;  Baylies  justice  to  allow  a  stranger  to  par- 

V.  Baylies,  1  Coll.  548.  ticipate  in  the  nominations  for  such 

8"^  Lespinasse  v.  Bell,  2  Jac.  &  W.  an  appointment.    O'Mahoney  v.  Bel- 

436.    The  appointment  of  a  receiver  mont,  62  N.  Y.  133;  Attorney-Gen- 

is    usually   a   matter   of    discretion,  eral  v.  Day,  2  Madd.  246;  Edw.  on 

but  there  are  persons  who  are  not  Rec.  22,  2  Barb.  Ch.  Pr.    (2d  ed.) 

competent    to    act    owing    to    their  316.     Where  the  matter  is  referred 

peculiar     relation     to    the    parties.  to  a  referee  with  power  to  appoint 

Benneson  v.  Bill,  62  III.  408.     See  a  receiver,  the  appointment  will  be 

Thomas  v.  Dawkin,  1  Ves.  Jr.  452,  entirely  within  his   discretion,   and 

3  Bro.  C.  C.  508.  he  need  not  give  any  reasons   for 

88  Smith  on  Rec.  8,  2  Barb.   Ch.  his  selection.     Benneson  v.  Bill,  62 


1140  MORTGAGE    FORECLOSURES.  [§    782 

§  782.  Ineligibility  to  be  appointed  a  receiver. — Al- 
though as  a  general  rule  the  court  will  appoint  as  receiver 
a  disinterested  person  and  not  a  party  to  the  foreclosure, 
yet  a  party  to  the  action  is  not  absolutely  disqualified  from 
acting  as  receiver.  Indeed,  there  are  cases  in  which  a  party 
to  the  suit,  if  otherwise  unobjectionable,  should  be  appointed 
in  preference  to  any  one  else.^°  A  non-resident  should  not 
be  appointed  a  receiver.^^  A  master  in  chancery,  whose  duty 
it  is  to  pass  upon  the  accounts  and  to  control  the  conduct 
of  a  receiver,  is  also  disqualified  from  acting.^^ 

The  New  York  judiciary  Law  ^^  prohibits  the  appointment  in 
New  York  and  Kings  counties  of  any  person  who  holds  the  office 
of  clerk,  deputy  clerk,  special  deputy  clerk  or  assistant  in  the 
clerk's  ofiice,  of  a  court  of  record  or  of  the  surrogate's  court. 
And  it  has  been  held  that  usually  a  party  to  the  suit  is  not 
competent  to  act  as  receiver,  unless  by  the  consent  of  all 
parties.^*  In  Kansas  ^^  and  Ohio  ^^  no  party,  or  attorney,  or 
person  interested  in  an  action  can  be  appointed  a  receiver 
therein ;  and  in  Kentucky  "  there  is  the  same  prohibition  with 
an  exception  in  favor  of  executors,  administrators,  curators, 
guardians  and  committees  of  persons  of  unsound  mind.  Gen- 
erally, a  trustee  to  let  and  manage  an  estate  should  not  be 
appointed  a  receiver  of  the  same,  whether  he  is  sole  trustee  or 
acts  jointly  with  others ; ''  he  should  be  appointed  only  when 
he  will  act  without  compensation.  Neither  is  the  next  of  kin 
of  an  infant  complainant  a  proper  party  to  be  appointed  a 

III.  408;  Thomas  v.  Dawkin,  1  Ves.  93  n    Y.  Code  Civ.  Proc.  §  251. 

Jr.  452,  3  Bro.  C.  C.  508.  ^^  Benneson   v.    Bill,   62    111.    408. 

^^  Hubbard  v.  Guild,  1  Duer.  (N.  But  see  Hubbard  v.  Guild,  1  Duer 

Y.)    662;    1   VanSant.  Eq.   Pr.  400.  (N.  Y.)  662. 

But   see   Benneson   v.    Bill,   62    111.  ^5  Kansas  Code,  §  263. 

408.  96  2  Ohio  Rev.  Stat.  §  5588. 

91  See  Meier  v.  Kansas  Pac.  Ry.  97  Ky.  Civil  Code,  §  330. 

Co.  5  Dill.  C.  C.  476.  642.  ^s  Sutton  v.  Jones,   15   Ves.   584; 

^^  Benneson   v.    Bill,  62   111.   408;  Sykes  v.  Hastings,   11   Ves.  363,  2 

Kilgore  v.  Hair,   19  S.  C.    (N.  S.)  Barb.    Ch.    (N.    Y.)    Pr.    (2d    ed.) 

486 ;  Ex  parte  Fletcher,  6  Ves.  427.  305 


§    783]  RECEIVER.  1141 

receiver;  ^^  nor  one  who  is  a  stranger  to  the  court,  if  objected 
to  by  either  party  ;^  nor  any  person  who,  by  his  own  act  or 
position,  stands  in  an  interested  relation  to  the  cause.  The 
law  partner  of  the  solicitor  for  the  plaintiff  in  a  foreclosure, 
cannot,  even  by  consent,  be  appointed  receiver.^ 

§  783.  From  what  time  a  receiver  considered  as  ap- 
pointed.— An  order  for  a  receiver  vests  the  possession  in 
him  from  the  date  of  his  appointment,^  without  reference  to 
the  time  of  his  giving  bonds.*  And  upon  the  appointment 
of  a  receiver,  the  title  to  the  property,  of  which  he  is  made  re- 
ceiver, vests  in  him  in  trust,  though  further  proceedings  may 
be  necessary  to  acquire  the  actual  possession  of  it.^  But  a 
court  cannot  take  property  out  of  the  hands  of  a  creditor 
until  his  claim  is  satisfied.^ 

When  an  order  of  reference  is  made  for  the  appointment 
of  a  receiver,  his  title  vests  in  and  attaches  to  the  property 
by  relation,  from  the  date  of  the  order  of  reference,  with  the 
same  effect  as  if  the  order  had  named  the  receiver.'  Such 
an  order  is  per  se  a  sequestration  of  the  property  and  gives 
all  the  necessary  means  for  enforcing  the  receiver's  rights.* 

Where  the   court   directs   a   reference   to   select   a  proper 

^^  Stone  V.  Wishart,  2  Madd.  64.  ^Maynard  v.  Bond,  67  Mo.  315. 

1  Smith  V.  New  York  ConsoUdat-  ^  Olney  v.  Tanner,  19  Bankr.  Reg. 
ed  State  Co.  28  How.   (N.  Y.)   Pr.       178. 

208.  18  Abb.  (N.  Y.)  Pr.  419.  ^Benedict  v.  Maynard,  5  McL.  C. 

2  Merchants'  and   Manufacturers'       C.  262. 

Bank    V.    Kent,    Circuit    Judge,    43  "^  Rutter  v.    Tallis,   5   Sandf.    (N. 

Mich.  292.  Y.)  610.    See  Denting  v.  New  York 

^Wilson  V.   Allen,    6    Barb.    (N.  MarWc  Co.  12  Abb.  (N.  Y.)  Pr.  66; 

Y.)  542;  Wilson  v.  Wilson,  1  Barb.  In     re     North     American     Gutta 

Ch.    (N.  Y.)    592.     See    Porter    v.  Percha   Co.   17  How.    (N.  Y.)    Pr. 

Williams,  9  N.  Y.  142;  59  Am.  Dec.  549,  9  Abb.   (N.  Y.)  Pr.  79;  Lotti- 

519;  sub  nam.  Porter  v.  Clark,   12  tner  v.   Lord,  4   E.   D.    Smith    (N. 

How.    (N.  Y.)    Pr.   107;    West    v.  Y.)   183. 

Fraser,    5    Sandf.     (N.    Y.)     653;  8  See    Porter  v.    Williams,  9   N. 

Albany  City  Bank  v.  Schermerhorn,  Y.  142,  59  Am.  Dec.  519. 
Clarke  Ch.  (N.  Y.)  297,  300;  Van- 
Wyck  V.  Bradley.  3  N.  Y.  Code,  157 


1142 


MORTGAGE    FORECLOSURES. 


[§  784 


person  to  be  appointed  receiver,  the  appointment  will  not 
be  complete  until  it  is  confirmed  by  a  special  order  of  the 
court;  °  but  where  the  referee  or  master  is  directed  to  appoint 
a  receiver  and  to  take  the  requisite  security  from  him,  an 
order  confirming  the  appointment  will  not  be  necessary.^" 

§  784.  Bond  of  receiver. — Except  in  those  cases  where 
the  sheriff  of  the  county  is  appointed  to  act  as  receiver  in 
a  mortgage  foreclosure,  the  receiver  should  be  required  to 
give  proper  bonds  for  the  faithful  performance  of  his  duties." 
The  bond  must  be  properly  executed,  approved  ^^  and  filed 
with  the  clerk  of  the  court  which  appointed  the  receiver. ^^ 
After  executing  and  filing  his  bond  he  may  immediately 
enter  upon  the  discharge  of  his  duties.-'* 

The  sureties  of  the  receiver  must  reside  within  the  juris- 
diction of  the  court,^^  and  be  real  and  substantial  persons 


8  In  re  Eagle  Iron  Works,  8 
Paige  Ch.   (N.  Y.)  385. 

10  2  Barb.  Ch.  Pr.  (2d  ed.)  317. 

11  Grantham  v.  Lucas,  15  W.  Va. 
425,  432.  See  Willis  v.  Corlies,  2 
Edw.  Ch.  (N.  Y.)  281;  Verplank 
V.  Caines,  1  Johns.  Ch.  (N.  Y.)  57 
Sea  Ins.  Co.  v.  Stebbins,  8  Paige 
Ch.  (N.  Y.)  565;  Quincy  v.  Cheese- 
man,  4  Sandf.  Ch.  (N.  Y.)  405; 
Smith  V.  Butcher,  28  Gratt.  (Va.) 
144.  By  the  provisions  of  the  Ken- 
tucky Civil  Code,  §  331,  and  the 
Ohio  Rev.  St.  §  5589,  a  receiver, 
before  entering  upon  the  discharge 
of  his  duties,  must  be  sworn  to  per- 
form them  faithfully,  and,  vi^ith  one 
or  more  sureties  to  be  approved  by 
the  court,  execute  a  bond  to  such 
person,  and  in  such  sum  as  the 
court  shall  direct,  conditioned  that 
he  will  faithfully  discharge  the 
duties  of  receiver  in  the  action  and 
obey  the  orders  of  the  court  there- 


12.  The  Maryland  Statute,  2  Md. 
Code  Pub.  L.  28,  29,  requiring  the 
bond  of  a  receiver  to  be  approved 
by  the  court,  but  not  making  such 
approval  a  condition  precedent,  is 
directory  only;  an  approval  )iuiic 
pro  tunc  will  be  valid.  Gephart  v. 
Starrett,  A7  Md.  396.  A  court  com- 
missioner has  no  jurisdiction  to  ap- 
point a  receiver,  and  a  bond  given 
by  a  receiver  so  appointed  and  ap- 
proved by  such  commissioner,  is 
void.  Quiggle  v.  Trumbo,  56  Cal. 
626. 

13  Where  a  bond  given  by  a  re- 
ceiver upon  his  appointment  is  not 
filed  with  the  proper  officer,  the 
court  may  direct  it  to  be  filed  nunc 
pro  tunc.  Whiteside  v.  Prender- 
gast,  2  Barb.  Ch.  (N.  Y.)  471; 
Carper  v.  Hawkins,  8  W.  Va.  291. 

1*  See  In  re  Eagle  Iron  Works,  8 
Paige  Ch.    (N.  Y.)    385. 

15  Cockburn  v.  Raphall,  2  Sim.  & 
S.  453. 


§    785]  RECEIVER.  1143 

capable  of  contracting.^^  If  the  sureties  proposed  are  not 
satisfactory  to  the  court,  the  receiver  can  present  the  names 
of  other  sureties  in  an  amended  proposal,  stating  them  to  be 
in  place  of  those  formerly  proposed. ^'^  Should  the  court  at 
any  time  regard  the  sureties  of  a  receiver  as  insufficient,  it 
may  require  him  to  show  cause  why  he  should  not  give 
additional  sureties  upon  his  bond;  upon  his  failure  to  show 
cause,  he  may  be  removed.  And  it  must  plainly  appear 
that  the  court  erred  in  so  removing  a  receiver  before  an 
appellate  court  will  reverse  its  action." 

§  785.  EflFect  of  appointment  of  receiver. — The  appoint- 
ment of  a  receiver  determines  no  rights. ^^  A  court  will 
not,  on  a  motion  to  appoint  a  receiver,  prejudge  the  case,^° 
or  give  any  intimation  what  its  decision  will  be  at  the  trial.^^ 
While  the  appointment  of  a  receiver  operates,  to  a  certain 
extent,  as  an  injunction,^^  yet  the  effect  of  the  appointment 
of  a  receiver  is  very  different  from  that  of  granting  an  in- 
junction. 

The  effect  of  the  appointment  of  a  receiver  is  to  remove 
the  property  from  the  possession  of  the  person  occupying  or 
holding  it.^*  Where  a  receiver  has  been  appointed  and  an 
order  is  made  for  the  delivery  of  the  property  to  him,  a 
demand  therefor  must  be  made  by  the  receiver  personally, 
for  the  party  in  possession  is  not  bound  to  deliver  the  prop- 
erty to  any  one  except  the  receiver.     The  plaintiff's  attorney 

16  Smith   V.   Scandrett,    1   W.    Bl.  20  Hugonin  v.  Basley,  13  Ves.  107. 

444;     Breadmore     v.     Phillips,     4  ^^  Tripp    v.    Chard    Ry.    Co.    11 

Maule.  &  Sel.  173.  Hare,  264. 

"2  Barb.  Ch.   Pr.    (2d  ed.)   316,  ^^  Evans  v.  Coventry,  3  Drew,  82. 

Edw.  on  Rec.  74.  An  injunction  is  embodied  more  or 

18  Shackelford  v.  Shackelford,  32  less  in  every  order  appointing  a  re- 

Gratt.   (Va.)   481.  ceiver. 

i^/n  re  Colvin,  3  Md.   Ch.   Dec.  ^3  See  Boyd  v.  Murray,  3  Johns. 

278,  302;  Chase's  Case,  1  Bland  Ch.  Ch.   (N.  Y.)   48. 

(Md.)   206,  213,   17  Am.  Dec.  277;  ^^  Payne  v.  Baxter,  2  Tenn.  Ch. 

Beverley  v.  Brooke,  4  Gratt.   (Va.)  517. 
187,  208. 


1144  MORTGAGE    FORECLOSURES.  [§    786 

cannot   act,   in   this   respect,   for   the   receiver  or   as   his   at- 
torney.^^ 

The  appointment  of  a  receiver  has  no  retroactive  effect  to 
divest  the  accrued  rights  of  third  persons.^®  The  rights  of 
a  receiver  extend  only  to  the  possession  of  the  land,  to  col- 
lecting the  rents  and  profits,  to  making  leases  and  to  exer- 
cising other  acts  of  control  over  the  property,  the  legal  title 
remaining  in  every  respect  as  it  was  prior  to  the  appointment 
of  such  receiver.^'^  A  receiver  cannot  be  placed  in  possession 
of  demised  premises  on  the  application  of  a  party  who  not 
only  is  not  entitled  to  the  possession  thereof,  but  who  has  no 
interest  whatever  in  the  property  in  question.^' 

§  786.  Jurisdiction  of  receiver. — A  receiver  has  no 
rights  or  powers  except  such  as  are  conferred  upon  him  by  the 
order  appointing  him  and  by  the  practice  of  the  courts ;  ^* 
and  he  cannot  act  in  his  official  capacity  beyond  the  juris- 
diction of  the  court  by  which  he  was  appointed.^" 

An  order  appointing  a  receiver  is  per  se  a  sequestration  of 
the  property,  and  gives  all  the  necessary  means  of  enforcing 

z^Panton  v.  Zebley,  19  How.  (N.  Ins.  Co.  2  Paige  Ch.   (N.  Y.)  438, 

Y.)   Pr.  394.  452;   Lottimer  v.   Lord,    4    E.    D. 

^^  Favorite  v.  Deardorff,  84  Ind.  Smith  (N.  Y.)   183;  Bowershank  v. 

555.  Colasscau,  3  Ves.  164,  1  Barb.  Ch. 

^T  Foster  v.  Townshend,  2  Abb.  Pr.  (2d  ed.)  669,  2  Id.  522. 
(N.  Y.)  N.  C.  29,  34;  Attorney-  soMoseby  v.  Burrow,  52  Tex. 
General  v.  Coventry,  1  P.  Wm.  396.  But  it  has  been  held,  that 
307;  Hyde  v.  Greenhill,  1  Dick.  where  a  mortgage  of  property  situ- 
106;  Sutton  v.  Stone,  1  Dick.  107.  ated  in  one  state  is  executed  to  a 
See  Neale  v.  Beating,  3  Swan,  304  receiver  appointed  in  another  state, 
n.  c,  Jeremy  Eq.  Jurisd.  252,  253.  such  receiver,  or  his  successor  in 
28  Huerstel  v.  Lorillard,  6  Robt.  office,  may  maintain  an  action  in  his 
(N.  Y.)  260.  own  name  to  foreclose  the  mort- 
is Chatauqua  County  Bank  v.  gage  in  the  state  where  the  prem- 
White,  6  Barb.  (N.  Y.)  589.  See  ises  are  situated.  Iglehart  v. 
Booth  V.  Clark,  58  U.  S.  (17  How.)  Bierce,  36  111.  133.  See  Dixon  v. 
322,  331,  15  L.  ed.  164;  In  re  Eagle  Buell,  Adm'r,  21  111.  203;  Town- 
Iron  Works,  8  Paige  Ch.  (N.  Y.)  send  v.  Carpenter,  11  Ohio,  21. 
385 ;    Verplank    v.    The    Mercantile 


§    7^7']  RECEIVER.  1145 

the  receiver's  rights  ;^^  but  if  the  person  appointed  receiver 
fails  to  quahfy  under  the  order,  he  will  acquire  no  interest 
in  or  right  to  the  property. ^^ 

§  787.  Nature  of  receiver's  possession. — It  has  been 
said,  where  a  receiver  is  appointed  on  the  application  of  the 
mortgagee  in  a  mortgage  foreclosure,  to  take  charge  of  the 
property  and  to  collect  the  rents  and  profits,  that  such  re- 
ceiver is  in  law  an  agent  of  the  mortgagor,  the  owner  of  the 
legal  estate ;  ^^  but  the  better  doctrine  seems  to  be  that  he  is 
an  officer  of  the  court,  appointed  on  behalf  of  all  who  may 
establish  an  interest  in  the  property,^*  and  not,  in  any  sense, 
a  representative  of  the  party  securing  his  appointment.^^  The 
property  in  his  hands  is  in  custodia  Icgis;  ^^  his  possession  is 
the  possession  of  the  court  and  is  entitled  to  its  protection.^' 

The  possession  of  a  receiver  is  valid  as  against  attaching 
creditors,  even  when  the  property  is  situated  in  another  state. ^* 

Where  a  court,  having  jurisdiction  of  the  case,  has  appoint- 
ed a  receiver  for  the  property  which  is  the  subject  of  the  suit, 
and  the  receiver  is  in  possession,  no  other  court  of  co-ordinate 
jurisdiction  can  interfere  with  the  property,  or  entertain  com- 
plaints against  the  receiver,  or  remove  him,^^  or  in  any  way 

^^  Porter   v.    Williams,   9    N.    Y.  ^^  Rg^s    v.     Williams,    11    Heisk. 

142,  59  Am.  Dec.  519.  (Tenn.)  410. 

32Coo/e  V.  Citizens'  Bank,  11  Ind.  ^^  King  v.  Ohio  &  M.  R'y  Co.  7 

256-  Biss.  C.  C.  529;  Field  v.  Jones,  11 

33  See  Chinnery  v.  Evans,   11   H.  ^a.   413;   Hutchinson  v.   Hampton, 

ST:J^^'        r.  ^  ^  1  Mon.  T.  39;  People  v.  Brooks,  40 

'^'^ ladings  V.  Bruen,  4  Sandf.  Ch.  .  -...  ,     ,,,    ^^   .        -r,        c,.     n  ,,, 

/XT  \T  \  ^^■7  u  w  /-;  l  ro  tt  Mich.  333,  29  Am.  Rep.  534;  Battle 
(N.  Y.)  417;  Booth  v.  Clark,  58  U.  „     .     ,,  „    „  ^-_ 

S.    (17  How.)    322,  331,    IS   L.   ed.  ogr-j-  a4    ^    c.    v    t?   r- 

■If: A.   c;, -A  „    Lr  J    -J    A^i     c(^A  ^'^  Chicago,  M.  &  St.  P.  K.  Co.  v. 

lo4;  iikip  V.  Harwood,  3  Atk.  564. 

35  Lottimer  v.  Lord,  4  E.  D.  ^'^^^"^  Northern  Line  Packet  Co. 
Smith  (N.  Y.)  183;  Tillinghast  v.  ^^^  ^"-  ^^''-  ^^  -"^"^-  ^^P"  ^^7. 
Champlin.  4  R.  I.  173,  67  Am.  Dec.  ^^  Bruce  v.  Manchester  &  K.  R. 
510;  Booth  v.  Clark,  58  U.  S.  (17  ^-  Co.  19  Fed.  342;  Young  v.  Mont- 
How.)  322,  15  L.  ed.  164;  Angel  v.  gomcry  &  E.  R.  R.  Co.  2  Woods 
Smith,  9  Ves.  336;  Jeremy  Eq.  Jur.  C.  C.  606;  Kennedy  v.  Indianapolis. 
248.  249,  2  Dan.  Ch.  Pr.  1406.  C.  &  L.  R.  Co.  2  FHpp.  C.  C.  704, 


1146  MORTGAGE    FORECLOSURES.  [§    788 

interfere  with  his  possession,  without  leave  of  the  court  which 
made  the  appointment.'*" 

§  788.  Rights  and  powers  of  receivers. — Until  his  ap- 
pointment is  complete,  a  receiver  has  no  right  to  the  rents 
and  profits  of  the  mortgaged  premises,  and  then  only  to  such 
as  remain  unpaid;  because  it  is  only  by  virtue  of  the  receiver's 
appointment  that  the  mortgagee  acquires  an  equitable  lien 
on  the  unpaid  rents.*^  A  receiver  appointed  in  a  mortgage 
foreclosure  has  no  powers  except  those  conferred  upon  him 
by  the  order  appointing  him  and  by  the  practice  of  the  court.*^ 
And  the  powers  thus  conferred,  do  not  extend  beyond  the 
jurisdiction  of  the  court  making  the  appointment.*^  Such  a 
receiver  has  no  authority,  without  an  order  of  the  court,  to 
disperse  money  to  any  person,**  or  in  any  manner  to  lessen 
the  funds  in  his  hands,  as  by  expenditures  for  repairs.*^ 

Where,  pendmg  the  foreclosure  of  a  mortgage  on  a  farm, 
a  receiver  is  appointed  on  the  written  assent  of  the  solicitors 
of  all  the  parties  in  interest,  with  power  to  let  the  premises, 
he  may  let  the  farm  for  a  year  without  a  special  order  of 

3  Fed.  97,  11  Cent.  L.  J.  89,  26  Int.  183;    In   re   Eagle   Iron    Works,   8 

Rev.  Rec.  390,  10  Rep.  359.  Paige  Ch.   (N.  Y.)    385;    Bowers- 

*°  See    Foster    v.    Townshend,    2  bank  v.  Colasseau,  3  Ves.  164. 

Abb.  (N.  Y.)  N.  C.  29,  36;  Sea  Ins.  ^  Booth   v.   Clark,  58  U.   S.    (17 

Co.  V.   Stebbins,  8  Paige  Ch.    (N.  How.)  322,  331,  15  L.  ed.  164.    See 

Y.)    565;    Angel  v.   Smith,  9   Ves.  ante,  §  786. 

336,    338;    Pelham    v.    Duchess    of  ^^  Duffy   v.    Casey,   7    Robt.    (N. 

New   Castle,  3    Swan.  289,   293    n.,  Y.)    79.     Counsel  in  a  case  cannot 

1    Story  Eq.  Jur.    (11th  ed.)    833a.  compel    a    receiver    to    pay    them 

See  post,  §  829.  moneys  to  which  they  think  them- 

*i  Rider    v.     Vrooman,     12    Hun  selves  entitled,  under  penalty  of  re- 

(N.  Y.)  299.    See  Bank  of  Ogdens-  moval.      See    Hospes   v.    Almstedt, 

burg  V.  Arnold,  5  Paige  Ch.  (N.  Y.)  13  Mo.  App.  270. 

38;   Favorite  v.  Deardorff,  84  Ind.  '^^  Wyckoff  v.  Scofield,  103  N.  Y. 

555.  630.     It  seems  that  the  court  may 

*2  Verplank    v.     Mercantile     Ins.  direct   such    expenditures,    if    they 

Co.  2  Paige  Ch.   (N.  Y.)  438,  452;  are  necessary   for  the  preservation 

Booth  V.  Clark,  58  U.  S.  (17  How.)  of   the   property.      Wyckoff  v.  Sco- 

323,  331,  15  L.  ed.  164.     See  Lotti-  field,  103  N.  Y.  630. 
merv.  Lord,  4  E.  D.  Smith  (N.  Y.) 


§    789]  RECEIVER.  1147 

the  court,  that  being  the  usual  term  for  such  lease;  and  such 
a  lease  will  neither  be  limited  nor  terminated  by  the  duration 
of  the  suit.  If  the  mortgagee  is  appointed  receiver,  he  must 
obtain  as  large  a  rent  as  possible,  although  it  may  exceed  the 
amount  due  on  his  mortgage.^® 

A  receiver  authorized  as  such  to  execute  formal  satisfac- 
tions and  discharges  of  mortgages  in  his  hands  upon  payment, 
has  also  authority  to  receive  payment  of  the  amounts  secured 
by  such  mortgages,  although  the  same  may  not  be  due  at  the 
time.*'  A  receiver  appointed  in  a  mortgage  foreclosure  has 
the  same  powers  and  is  governed  by  the  same  rules  in  respect 
to  the  bringing  and  the  defending  of  suits  as  receivers  in  other 
actions.** 

§  789.  Rights  and  duties  of  receivers. — A  receiver  in  a 
mortgage  foreclosure,  being  an  officer  of  the  court,  is  entitled 
to  receive  the  guidance  and  protection  of  such  court,*^  and  to 
be  instructed  as  to  his  duties,^"  the  same  as  receivers  in  other 
cases.     In  cases  of  doubt,  and  particularly  in  cases  where 

^Bolles  V.  Duff,  2>7   How.    (N.  « See   Phelps  v.    Cole,  3   N.   Y. 

Y.)    Pr.   162.     The  receiver  cannot  Code,    157;   Smith  v.    Woodruff,  6 

become  his   own  tenant,  unless  by  Abb.    (N.   Y.)    Pr.   65;    Merritt  v. 

consent    of    the    parties.     Alven   v.  Lyon,     16    Wend.     (N.    Y.)     410; 

Bond,  3  Irish  Eq.  372;  Stannus  v.  Field  v.   Jones,   11    Ga.    413,    417; 

French,   13  Irish    Eq.    161.     Under  Gadsden  v.    W Haley,  14  S.  C.  210; 

the   English   rule,   the   practice   re-  Booth  v.  Clark,  58  U.  S.  (17  How.) 

quired   the   receiver  to    obtain    an  322,  331,  15  L.  ed.  164. 

order    of   the   court   before   letting  *^  Cammack  v.  Johnson,  2  N.  J. 

the    lands.     Neale    v.     Bealing,    3  Eq.     (1    H.    W.    Green)     163.    See 

Swanst.  304  ;Aform  v.  Eltne,  1  Ves.  In  re  Receivers  of  Globe  Ins.  Co. 

Jr.   139;   Swaby  v.  Dickon,  5   Sim.  6  Paige  Ch.    (N.  Y.)    102;  Hooper 

631 ;    Robertson    v.     Armstrong,    2  v.  Winston,  24  111.  353. 

Molloy,  352,  or  its  approbation  of  ^^  See  Smith  v.  New  York  Cent. 

the   matter;    Duffield   v.   Elwes,    11  Stage  Co.  18  Abb.  (N.  Y.)  Pr.  419, 

Beav.  590;  Wynne  v.  Newborough,  28  How.    (N.   Y.)    Pr.  208;   In   re 

1  Ves.  Jr.   164.  VanAllen,  Z7   Barb.    (N.   Y.)    225; 

^"^ Heermans  v.    Clarkson,   64   N.  Curtis  v.  Leavitt,  10  How.   (N.  Y.) 

Y.  171.  Pr.  481,  1  Abb.   (N.  Y.)   Pr.  274. 


1148  MORTGAGE    FORECLOSURES.  [§    790 

there  are  conflicting  interests  or  claims,  the  receiver  should 
apply  to  the  court  for  instruction." 

It  is  the  duty  of  a  receiver  to  obey  the  orders  of  the  court 
which  appointed  him,^^  and  to  act  in  all  things  with  a  view 
to  the  equitable  rights  of  the  parties  in  interest.^^  Where 
a  mortgagee  in  possession  is  appointed  receiver  of  the  prop- 
erty, his  individual  interests  must  not  be  permitted  to  inter- 
fere with  his  duties  as  receiver/*  A  receiver  must  pay  into 
court  all  the  rents  collected  by  him  prior  to  the  conveyance 
of  the  mortgaged  premises  pursuant  to  the  terms  of  the  judg- 
ment of  foreclosure  and  sale.^^ 

§  790.  Rents  bound  from  date  of  appointment  of  re- 
ceiver.— A  mortgagee  has  no  claim,  as  mortgagee,  to  the 
rents  and  profits  of  the  mortgaged  premises,  and  can  become 
entitled  to  receive  them  only  by  commencing  proceedings  for 
the  foreclosure  of  his  mortgage  and  procuring  the  appoint- 
ment of  a  receiver,^^  except  where  the  rents  and  profits  have 

51  Lottimer  v.  Lord,  4  E.  D.  of  the  particular  plaintiff  who  pro- 
Smith  (N.  Y.)  183.  It  is  said,  cured  his  appointment  or  that  of 
however,  that  a  receiver  should  his  legal  advisers.  Lottimer  v. 
not,  of  his  own  motion,  make  an  Lord,  4  E.  D.  Smith  (N.  Y.)  183. 
application  to  the  court;  but  that,  ^^Bolles  v.  Duff,  54  Barb.  (N. 
if  he  finds  himself  in  circumstances  Y.)  215,  37  How.  (N.  Y.)  Pr. 
of  difficulty,  he  should  request  the  162. 

plaintiff  to  make  the  necessary  ap-  ^5  Nichols  v.  Foster,  9  N.  Y.  Wk. 

plication,  and  that  on  his   default,  Dig.  468. 

the    receiver    may    properly    apply.  56  Wyckoff  v.  Scofield,  98  N.  Y. 

Edw.  on  Rec.  158,  2  Barb.  Ch.  Pr.  475.    See  Rider  v.  Bagley,  84  N.  Y. 

(2d  ed.)  287.  461;  Argall  v.  Pitts,  78  N.  Y.  239. 

52  Corey  v.  Long,  12  Abb.  (N.  It  was  held  in  the  case  of  Rider  v. 
Y.)  Pr.  N.  S.  427,  43  How.  (N.  Y.)  Bagley,  supra,  that  by  the  appoint- 
Pr.  492.  In  case  of  the  refusal  of  ment  of  a  receiver  in  a  fore- 
a  receiver  to  obey  the  instructions  closure  suit,  the  plaintiff  obtains  an 
of  the  court,  the  court  can  and  equitable  lien  only  upon  the  unpaid 
ought  to  remove  him.  Guardians'  rents,  and  that  until  such  appoint- 
Savings  Institution  v.  Bowling  ment,  the  owner  of  the  equity  of 
Green  Savings  Bank,  65  Barb.  (N.  redemption  has  a  right  to  receive 
Y.)  275.  the  rents  and  cannot  be  compelled 

53  It  has  been  said  that    the    re-  to  account  for  them 
ceiver  should  follow  the  directions 


§    790]  RECEIVER.  1149 

been  pledged,  by  an  express  stipulation  in  the  mortgage,  for 
the  payment  of  the  debt ;  "  and  even  then  he  will  be  confined 
to  the  rents  and  profits  accruing  during  the  pendency  of  the 
suit.^^  He  will  also  have  authority  to  collect  such  rents  and 
profits  as  have  theretofore  accrued,  but  have  not  yet  come  into 
the  hands  of  the  owner  of  the  equity  of  redemption,  and  apply 
them  to  the  payment  of  the  mortgage  debt ;  *^  but  the  court 
has  no  power  to  order  rents  which  have  already  been  col- 
lected and  are  in  the  possession  of  the  owner,  to  be  paid  over 
to  the  receiver.^"  Neither  will  a  receiver  be  entitled  to  rents 
and  profits  collected  during  the  pendency  of  the  motion  for 
his  appointment.^^ 

A  mortgagee  has  no  right,  as  mortgagee,  to  the  rents  of 
the  mortgaged  premises  which  have  been  paid  into  court  by 
a  receiver  appointed  in  a  suit  by  legatees  for  the  adminis- 
tration of  the  estate  of  the  mortgagor,  although  the  mort- 
gagee may  have  obtained  a  decree  for  the  foreclosure  of  his 
mortgage  in  the  same  court  and  may  have  sold  the  mortgaged 

"  See  ante,  §  758,  note  90.  and    that    such    surrender    and    ac- 

^^  Argall  v.  Pitts.  78  N.  Y.  239;  ceptance  and  new  lease  constituted 

Neaiis  v.  Bussing,  9  Daly   (N.  Y.)  no  defense  to  an  action  by  the  re- 

305;  Leeds  v.  Gifford.  41  N.  J.  Eq.  ceiver   against   the   lessee    for    rent 

(14  Stew.)  464;  Conovcr  v.  Grover,  subsequently  accruing  and  remain- 

31   N.  J.  Eq.    (4  Stew.)    539.     See  ing  unpaid. 

Stillman  v.  Van  Beuren,  100  N.  Y.  59  IVyckoff  v.  Scofield.  98  N.  Y. 

439.    In  Neaiis  v.  Bussing,  supra,  it  475 ;     Codrington    v.    Johnston,     1 

was  held,  where  a  receiver  of  the  Beav.  524. 

rents,   issues   and  profits   of   mort-  ^°  Wyckoff  v.  Scofield,  98  N.  Y. 

gaged  premies  had  been  appointed  475. 

in  an  action  for  the  foreclosure  of  ^^  Rider  v.  Bagley,  84  N.  Y.  461. 

the  mortgage,  and  notice  of  his  ap-  Where     another     party     than     the 

pointment    had    been    given    to    a  mortgagee  has  acquired  a  legal  or 

lessee  of  the  premises  under  a  lease  equitable  interest  in,  or  title  to,  the 

from  the  mortgagor,  and  the  lessee  rents  or  profits,  prior    to    the    ap- 

had    paid    rent    falling   due   to   the  pointment  of  a  receiver  as  provided 

receiver,    that    the    mortgagor    had  in  section  299  of  the  Civil  Code,  the 

no  authority  to  accept  a  surrender  mortgagee's  claim  to  such  rents  or 

from    the    lessee,    or   to   execute    a  profits    will    be    postponed    to    that 

new   lease  of  the  premises   during  of  the  intervening  claim.     IVoolley 

the  continuance  of  the  receivership,  v  Holt.  14  Bush  (Ky.)  788. 


1150  MORTGAGE    FORECLOSURES.  [§    791 

premises,  and  part  of  the  debt  remains  unsatisfied.  He  should 
have  appHed  to  the  court  to  discharge  the  receiver  in  the  suit 
for  administration,  and  either  entered  into  possession  himself 
or  applied  for  a  receiver  in  his  action  for  foreclosure.®^  The 
receiver  should  compel  tenants  not  parties,  to  attorn  to  him, 
or  he  will  not  be  permitted  to  proceed  against  them  by  sum- 
mary proceedings.®^ 

§  791.  Personal  liability  of  receivers. — The  liability  of 
a  receiver  under  a  mortgage  foreclosure  is  the  same  as  that 
of  a  receiver  appointed  in  any  other  case.  Thus,  a  receiver 
will  be  personally  liable  for  loss  through  neglect  or  a  breach 
of  duty,®*  or  if  he  exceeds  his  authority.®*  If  a  receiver  de- 
parts from  the  line  of  his  duty,  as  marked  out  by  the  decree, 
and  a  loss  ensues,  he  will  be  obliged  to  bear  it,  although  he  may 
have  acted  under  the  advice  of  counsel.  But  property  lost 
while  in  the  hands  of  a  receiver,  being  in  custodia  legis,  can- 
not be  considered  as  lost  by  conversion,  so  as  to  render  the  ob- 
ligors on  a  bond  for  its  return,  liable  therefor.®® 

Where  a  receiver,  appointed  upon  the  application  of  the 
mortgagee,  embezzles  or  otherwise  wastes  the  rents  and  prof- 
its, the  loss  will  fall  on  the  mortgagor,  or  on  his  estate.®'  A 
mortgagee  is  not  liable  for  such  wrongdoing  by  the  receiver.®' 
Yet  it  is  said  that  a  person,  at  whose  instance  a  receiver  is 
appointed,  should  see  that  he  performs  his  duties,  and  that  any 
loss  which  he  might  have  prevented  by  proper  diligence,  must, 
as  between  him  and  the  other  litigants,  be  borne  by  him.*® 

62  Coddington  v.  Bispham,  36  N.  15  Am.  Rep.  63 ;    Stanton   v.    Ala- 
J.  Eq.   (9  Stew.)  574.  bama  R.  Co.  2  Woods  C.  C.  506. 

63  Bowery  Savings  Bank  v.  ^6  Wall  v.  Pulliam,  5  Heisk, 
Richards,  3  Hun  (N.  Y.)  366.  (Tenn.)  365. 

64  As  where  loss  is  sustained  by  67  Rigge  v.  Bowater,  3  Bro.  Ch. 
a  tenant  quitting  possession  and  365 ;  Hutchinson  v.  Lord  Massar- 
the  receiver  neglects  to  apply  eene,  2  Ball.  &  B.  (Ir.  Ch.)  55. 
promptly  to  the  court  for  authority  68  Robinson  v.  Arkansas  Loan  & 
to  re-let.  Wilkins  v.  Lynch,  2  Trust  Co.  74  Ark.  292,  85  S.  W.  413. 
Molloy,  499,  Edw.  on  Rec.  573.  69  Downs      v.      Allen,     10     Lea 

^^  Hills  V.  Parker,  111  Mass.  508,       (Tenn.)   652.     The  court  of  chan- 


§    791]  RECEIVER.  1151 

eery  of  New  Jersey,  in  the  case  of  cures   to   be   appointed   as   receiver 

Sorchan  v.  Maya,  50  N.  J.  Eq.    (5  his  own  solicitor  and  agent,  will  be 

Dick.)  288,  23  Atl.  479,  hold  that  a  compelled  to  bear  the  loss  caused 

complainant    suing    to    foreclose    a  by    the    receiver's    defalcation    and 

mortgage,  who  nominates  and  pro-  the  insufficiency  of  his  sureties 


CHAPTER  XXXI. 

RECEIVER— WHEN  WILL  BE  APPOINTED. 

CAUSES  FOR  APPOINTMENT — INADEQUACY  OF  SECURITY — INSOLVENCY  OF 
MORTGAGOR — PART  ONLY  OF  DEBT  DUE — WHEN  RECEIVER  DENIED — MORTGAGEE 
IN    POSSESSION — ACCOUNTING   BY    RECEIVER — DISCHARGE. 

§  792.  Causes  for  appointing  a  receiver — Generally. 

§  793.  Inadequacy  of  security  and  insolvency  of  mortgagor. 

§  794.  Receivership  in  New  Jersey. 

§  795.  Lien  of  mortgagee  on  rents  and  profits. 

§  796.  Receiver  of  deceased  mortgagor's  estate. 

§  797.  Imminent  danger  of  loss  or  injury. 

§  798.  Accumulation  of  taxes  and  interest,  ground  for  appointing  a  re- 
ceiver. 

§  799.  Waste  and  fraud,  causes  for  appointing  a  receiver. 

§  800.  Injunction  restraining  sale,  cause  for  appointing  a  receiver. 

§  801.  When  a  receiver  will  not  be  appointed — Mortgagor  giving  security. 

§  802.  Where  part  only  of  debt  due,  or  premises  can  be  sold  in  parcels. 

§  803.  Where  mortgagee  guilty  of  laches — Validity  of  mortgage  denied. 

§  804.  Where  property  in  possession  of  stranger  to  the  foreclosure. 

§  805.  Where  a  bill  is  filed  to  redeem. 

§  806.  When  rents  cannot  be  applied  under  a  receiver. 

§  807.  When  receiver  applied  for  by  defendant. 

§  808.  Receiver  not  appointed  during  the  time  allowed  for  redemption. 

§  809.  Receivers  as  between  different  mortgagees. 

§  810.  Appointment  of  second  receiver. 

§  811.  No  receiver  where  mortgagee  holds  legal  title. 

§  812.  No  receiver  where  mortgagee  in  possession. 

§  813.  Subsequent  mortgagee  redeeming  from  prior  mortgagee  in  pos- 
session. 

§  814.  Other  cases   for  receiver    where  mortgagee  in  possession. 

§  815.  When  a  receiver  will  be  appointed  against  a  mortgagee  in  pos- 
session. 

§  816.  Receiver   where   first  mortgagee  out   of   possession. 

§  817.  Receiver  appointed  upon  the  application  of  junior  mortgagee. 

§  818.  Receiver  when  junior  mortgagee  in  possession. 

§  819.  General  practice  in  appointing  receiver. 

§  820.  Time  of  appointing  receiver. 

§  821.  Appointment  of  receiver  before  answer. 

1152 


792] 


RECEIVER. 


1153 


§  822.  Appointment  of  receiver  after  granting  decree. 

§  823.  Appointment  of  receiver  after  sale. 

§  824.  Interference  with  receiver's  possession. 

§  825.  Remedy  of  parties  claiming  title  paramount  to  receiver. 

§  826.  Appeal — Continuance  of  receivership, 

§  827.  Accounting  of  receivers. 

§  828.  Compensation  of  receivers. 

§  829.  Removal  of  receivers. 

§  830.  Discharge  of  receivers. 

§  792.  Causes  for  appointing  a  receiver — Generally. — 

In  an  action  for  the  foreclosure  of  a  mortgage,  the  plaintiff 
is  entitled  to  the  appointment  of  a  receiver  to  take  charge 
of  the  property  and  to  collect  the  rents  and  profits  thereof, 
when  it  is  made  to  appear,  that  the  premises  will  probably 
be  insufficient  to  pay  the  mortgage  debt,'''"  that  the  party 
who  is  liable  for  any  deficiency  in  the  security  is  insolvent,'^ 
and  that  the  plaintiff  has  prima  facie  an  equitable  right  to 
the  property  in  controversy.    A  receiver  will  also  be  appointed 


W  MacKellar  v.  Rogers,  52  N.  Y. 
Supr.  Ct.  (20  J.  &  S.)  360;  HoUcn- 
beck  V.  Donell,  94  N.  Y.  342; 
Main  v.  Ginthert,  92  Ind.  180; 
Jacobs  V.  Gibson,  9  Neb.  380.  See 
Baniett  v.  Nelson,  54  low^a,  41,  37 
Am.  Rep.  183;  Myton  v.  Davenport, 
51  Iowa,  583. 

71  See  Mitchell  v.  Bartlett,  51  N. 
Y.  447;  Astor  v.  Turner,  2  Barb. 
(N.  Y.)  444;  Hollenbeck  v.  Donell, 
29  Hun  (N.  Y.)  94,  reversed  in  94 
N.  Y.  342;  Sea  Ins.  Co.  v.  Steb- 
bins,  8  Paige  Ch.  (N.  Y.)  565,  568; 
Price  V.  Dowdy,  34  Ark.  285 ;  Main 
V.  Ginthert,  92  Ind.  180;  White  v. 
Griggs,  54  Iowa,  650;  Myton  v. 
Davenport,  51  Iowa,  583;  Douglass 
V.  Cline,  12  Bush.  (Ky.)  608; 
Chase's  Case,  1  Bland  Ch.  (Md.) 
206 ;  Brown  v.  Chase,  Walk.  Ch. 
(Mich.)  43;  Phillips  v.  Eiland,  52 
Miss.  721 ;  Kerchncr  v.  Fairlcy,  80 
N.  C.  24;  Henshaw  v.  Wells,  9 
Mortg.  Vol.  II.— 73. 


Humph.  (Tenn.)  568;  Schrieber  v. 
Caro',  48  Wis.  208;  Haas  v.  Chi- 
cago Building  Sac.  89  111.  502; 
Brinkman  v.  Retzinger,  82  Ind.  364; 
McCaslin  v.  State,  44  Ind.  151 ; 
Smith  V.  Kelley,  31  Hun  (N.  Y.) 
388;  Burlingame  v.  Parse,  12  Hun 
(N.  Y.)  48;  Frelinghuysen  v. 
Golden,  4  Paige  Ch.  (N.  Y.)  204; 
Morris  v.  Branchaud,  52  Wis.  191, 
8  N.  W.  383;  Grant  v.  Phanix 
Mint.  L.  Ins.  Co.  121  U.  S.  105.  30 
I.,  ed.  909,  7  Sup.  Ct.  Rep.  841.  The 
party  applying  must  not  only  satis- 
fy the  court  that  there  is  a  proba- 
bility that  the  mortgaged  premises 
will  not  sell  for  enough  to  satisfy 
the  decree,  but  also  that  the  party 
who  is  thus  individually  liable  is 
himself  responsible  for  the  probable 
amount  of  such  anticipated  de- 
ficiency, after  paying  all  his  other 
just  debts.  Morris  v.  Branchaud, 
52  Wis.  191 ;  8  N.  W.  383 


1154 


MORTGAGE    FORECLOSURES. 


[§  792 


if  circumstances  of  fraud  or  bad  faith  on  the  part  of  the 
mortgagor  are  shown,'^  or  if  there  are  other  facts  involved 
in  the  case  which  would  render  the  denial  of  a  receiver  in- 
equitable or  unjust.'^  A  receiver  will  always  be  appointed 
when  it  is  shown  that  the  rents  and  profits  have  been  expressly 
pledged  by  the  terms  of  the  mortgage  for  the  payment  of  the 
debt.'* 

The  appointment  of  a  receiver  is  always  a  matter  resting 
in  the  sound  discretion  of  the  court ;  '*  and  unless  it  is  made 
clearly  to  appear  that  such  discretionary  power  has  been 
abused  to  the  injury  of  the  party  complaining,  it  will  not  be 
interfered  with.'^  And  the  better  rule  to  govern  that  discre- 
tion is  that  which  will  grant  the  order  of  appointment,  as  it 
may  or  may  not  be  an  essential  means  to  pay  the  debt  secured 
by  the  mortgage.''"''  Where  the  rents  and  profits  are  not 
pledged  by  the  terms  of  the  mortgage,  the  court  must  be  satis- 


''^  Haas  V.  Chicago  Building  So- 
ciety, 89  111.  498. 

'3  Haas  V.  Chicago  Building  So- 
ciety, 89  111.  498.  See  Bloodgood 
V.  Clark,  4  Paige  Ch.  (N.  Y.)  577. 
These  facts  may  be  made  to  appear 
by  affidavits.  See  Vann  v.  Barnet, 
2  Bro.  Ch.  157 ;  Metcalfe  v.  Pulver- 
toft,  1  Ves.  &  B.  180;  De  Berrera  v. 
Frost,  3Z  Tex.  Civ.  App.  580. 

"^^  Shotwell  V.  Smith,  3  Edw.  Ch. 
(N.  Y.)  588;  Verplank  v.  Caincs,  1 
Johns.  Ch.  (N.  Y.)  57;  Tysen  v. 
Wabash  R.  Co.  8  Biss.  C.  C.  247. 
See  Morrison  v.  Buckner,  Hempst. 
C.  C.  442;  Lloyd  v.  Passingham,  16 
Ves.  59;  IVest  v.  Adams,  106  111. 
App.  114;  Ortengren  v.  Rice,  104 
111.  App.  428;  Butler  v.  Fraser,  57 
N.  Y.  Supp.  900;  Ball  v.  Marskc, 
202  111.  31,  66  N.  E.  845.  See 
Warner  V.  Gouverneur's  Ex.  1 
Barb.  (N.  Y.)  36,  Edw.  on  Rec. 
356  et  seq;  Sage  v.  Mendelson,  42 
Misc.    137,   85    N.    Y.    Supp.    1008; 


Moncrieff  as  adm'r  etc.  v.  Hare, 
38  Colo.  221,  7  L.R.A.(N.S.)  1001, 
87  Pac.  1082;  Handman  v.  Volk, 
99  S.  W.  660.  See  also  Prussing  v. 
Lancaster,  234  111.  462,  84  N.  E. 
1062.  But  see  Brick  v.  Harnbeck, 
19  Misc.  218,  43  N.  Y.  Supp.  301. 

'5  Douglass  v.  Kline,  12  Bush 
(Ky.)  644;  Nichols  v.  Perry  P.  A. 
Co.  11  N.  J.  Eq.  (3  Stock.)  126; 
Sea  Ins.  Co.  v.  Stebbins,  8  Paige 
Ch.  (N.  Y.)  565. 

''^Jacobs  V.  Gibson,  9  Neb.  380; 
Lechner  v.  Green,  104  111.  App.  442; 
New  York  Building  Loan  Banking 
Co.  V.  Begly,  75  App.  Div.  308,  78 
N.  Y.  Supp.  169.  See  also  Land 
Title  &  Trust  Co.  v.  Kellogg,  7Z 
N.  J.  Eq.  524,  68  Atl.  80. 

'''^  Myers  v.  Estell,  48  Miss.  403; 
Ogdensburgh  Bank  v.  Arnold,  5 
Paige  Ch.  (N.  Y.)  39;  Clason  v. 
Corley,  5  Sandf.  (N.  Y.)  447; 
Schreiber  v.  Carey,  48  Wis.  208, 
213.  4  N.  W.  124. 


§    793]  RECEIVER.  1155 

fied  that  the  premises  are  insufficient  to  pay  the  debt  and  that 
there  are  other  circumstances  which  justify  the  appoint- 
ment ;  '^  but  where  the  rents  and  profits  are  expressly  pledged 
for  the  payment  of  the  debt,  the  mortgagee  or  his  assignee 
need  not  conchisively  establish  a  right  to  recover  on  the  mort- 
gage. If,  in  such  a  case,  he  makes  out  a  probable  right  to 
recover  and  shows  the  insolvency  of  the  debtor,  he  will  be 
entitled  to  the  appointment  of  a  receiver.'^ 

In  Indiana,^"  the  appointment  of  a  receiver  in  a  suit  to  fore- 
close a  mortgage  may  be  made  without  reference  to  the  sol- 
vency of  the  mortgagor,  where  it  appears  that  the  mortgaged 
property  is  not  sufficient  to  satisfy  the  debt;  and  the  mortgagee 
is  authorized  to  take  possession  of  the  land  and  the  crops 
growing  thereon,  although  the  mortgagor  may  be  in  posses- 
sion at  the  time.*^ 

It  is  said  that  a  receiver  will  not  be  appointed  before  an- 
swer in  all  those  cases  where  the  complaint  does  not  aver  that 
there  was  any  wrongful  interference  on  the  part  of  the  de- 
fendants with  the  duties  of  the  trustees,  or  show  what  title 
or  interest  the  plaintiff  had,  or  contain  any  allegation  of  in- 
solvency on  the  part  of  the  defendants,  or  that  there  is  dan- 
ger to  the  property  or  interests  concerned.*^ 

§  793.  Inadequacy  of  security  and  insolvency  of  mort- 
gagor.— In  an  action  for  the  foreclosure  of  a  mortgage  the 
court  has  power  to  appoint  a  receiver  of  the  rents  and  profits 
of  the  mortgaged  premises,  where  the  whole  amount  of  the 

78  Shotwell  V.  Smith,  3  Edw.  Ch.  so  Ind.  Rev.  Stat.  §  1222. 

(N.  Y.)  588;  Whitehead  v.  iVooten,  ^^  Hursh  v.  Hursh,  99  Ind.  500. 

43  Miss.  523;  Frisbie  v.  Bateman,  ^^Turnbull  v.  Prentiss  Lumber 
24  N.  J.  Eq.  (9  C.  E.  Gr.)  28;  Co.  55  Mich.  387,  21  N.  W.  380; 
Cortleyeu  v.  Hathazvay,  11  N.  J.  West  v.  Swan,  3  Edw.  Ch.  (N.  Y.) 
Eq.  (3  Stockt.)  39,  64  Am.  Dec.  420;  Simmons  v.  Wood,  45  How. 
478.  See  Locke  as  adm'x  etc.  v.  (N.  Y.)  Pr.  269;  Vann  v.  Barnett, 
Klunker,  as  adm'x  etc.  123  Cal.  2  Bro.  Ch.  158;  Metcalf  v.  Pulver- 
231,  55  Pac.  993.  toft,  1  Ves.  &  B.  180. 

■^9  Des  Moines  Gas  Co.  v.  West, 

44  Iowa,  23. 


1156 


MORTGAGE    FORECLOSURES. 


[§  793 


mortgage  is  due,^'  and  it  is  made  to  appear,  that  the  proceeds 
of  the  sale  will  probably  be  insufficient  to  satisfy  the  debt 
secured,**  that  the  property  is  rapidly  depreciating  in  value," 
and  that  the  mortgagor,  or  other  party  personally  liable  for 
the  mortgage  debt,  is  insolvent.*® 

Where  a  corporation  is  the  defendant  owner  in  a  mortgage 
foreclosure,  a  receiver  will  be  appointed  only  when  the  mort- 
gage debt,  or  the  interest  thereon,  has  remained  unpaid  for 
at  least  thirty  days  after  it  became  due,  and  has  been  demand- 
ed of  the  proper  officer  of  such  corporation;  and  he  will  be 
appointed  then,  only  when  the  rents  of  such  property  have 
been  specifically  pledged  in  the  mortgage,  or  the  property  it- 
self will  probably  be  insufficient  to  pay  the  amount  of  the 
mortgage  debt." 


83  Bank  of  Ogdensburg  v.  Arnold, 
5  Paige  Ch.   (N.  Y.)  38. 

^^  Jacobs  V.  Gibson,  9  Neb.  380. 
See  Haas  v.  Chicago  Building  So- 
ciety, 89  111.  498;  Newport  &  Cinn. 
Bridge  Co.  v.  Douglass,  12  Bush 
(Ky.)  673;  Browning  v.  Stacey,  52 
App.  Div.  626,  65  N.  Y.  Supp.  203 ; 
Chambers  as  ex'r  etc.  v.  Barker,  2 
Neb.  (Unof.)  523,  89  N.  W.  388; 
Sweet  &  Clark  Co.  v.  Union  Na- 
tional Bank  of  Troy,  149  Ind.  305, 
49  N.  E.  159. 

^^  Smith  V.  Kelley,  31  Hun  (N. 
Y.)  387. 

^^Hollenbeck  v.  Donnell,  94  N. 
Y.  342,  reversing  29  Hun  (N.  Y.) 
94;  Warner  v.  Gouverneur's  Ex.  1 
Barb.  (N.  Y.)  36;  Shotwell  v. 
Smith,  3  Edw.  Ch.  (N.  Y.)  588; 
Verplank  v.  Caines,  1  Johns.  Ch. 
(N.  Y.)  58;  Astor  v.  Turner.  11 
Paige  Ch.  (N.  Y.)  436,  43  Am. 
Dec.  766;  Howell  v.  Ripley,  10 
Paige  Ch.  (N.  Y.)  45;  Sea  Insur- 
ance Co.  V.  Stebbins,  8  Paige  Ch. 
(N.  Y.)  565;  Bank  of  Ogdensburg 


V.  Arnold,  5  Paige  Ch.  (N.  Y.)  38; 
Quincy  v.  Cheesman,  4  Sandf.  Ch. 
(N.  Y.)  405;  Hughes  v.  Hatchett, 
55  Ala.  631;  Price  v.  Dowdy,  34 
Ark.  285 ;  Jacobs  v.  Gibson,  9  Neb. 
380;  Tysen  v.  Wabash  R.  Co.  8 
Biss.  C.  C.  247;  Hunter  v.  Hays, 
7  Biss.  C.  C.  362;  Morrison  v. 
Buckner,  Hempst,  C.  C.  442;  Lloyd 
V.  Passinghani,  16  Ves.  59;  Albrit- 
ton  V.  Lott-Blacksher  Commission 
Co.  167  Ala.  541,  52  So.  653;  A meri- 
can  National  Bank  v.  Northwestern 
Mutual  Life  Ins.  Co.  89  Fed.  610; 
Winkler  as  ex'r  etc.  v.  Magdeburg 
as  assignee  etc.  100  Wis.  421,  76  N. 
W.  332;  Veerhoff  as  ex'x  etc.  v. 
Miller,  30  App.  Div.  355,  51  N.  Y. 
Supp.  1048.  See  Elmira  Mechanics' 
Society  of  New  York  v.  Stanchfield, 
160  Fed.  811,  87  C.  C.  A.  585 
(Colo.)  See  also  Land  Title  & 
Trust  Co.  V.  Kellogg,  7Z  N.  J.  Eq. 
524.  68  Atl.  80. 

87  Laws  of  New  York  for  1870, 
chap.  151,  §  3. 


793] 


RECEIVER. 


1157 


To  entitle  a  mortgagee  to  a  receiver  he  must  show  clearly 
that  the  mortgaged  premises  are  an  inadequate  security  for 
the  debt^*  and  that  the  mortgagor,  or  other  party  personally 
liable  for  the  debt,  is  insolvent.®^  Some  of  the  cases  hold  that 
the  mortgagor  must  be  shown  to  be  hopelessly  insolvent ;  ^^ 
others,  however,  hold  that  in  order  to  justify  the  appointment 
of  a  receiver  in  a  foreclosure,  it  need  not  appear  that  the 
mortgagor  is  insolvent,  if  it  is  shown  that  the  mortgaged  prop- 
erty is  of  insufficient  value  to  pay  the  debt.^^ 

In  no  case  will  a  receiver  be  appointed,  if  it  is  clear  that 
on  a  sale  under  the  decree  of  foreclosure,  the  mortgaged 
property  will  sell  for  enough  to  pay  the  debt,  interest  and 
costs.®^  It  is  said  to  be  erroneous  to  appoint  a  receiver  in  a 
foreclosure,  where  neither  waste,  nor  failure  to  pay  taxes, 
nor  diminution  of  the  value  of  the  security,  nor  increase  of 
the  mortgage  debt  is  shown,  and  where  it  does  not  appear  that 
the  party  personally  liable  for  the  debt  is  not  responsible  for 
any  probable  deficiency.'^ 


88  See  Ruprecht  v.  Henrici,  113 
111.  App.  398. 

89  Syracuse  Bank  v.  Tallman,  31 
Barb.  (N.  Y.)  201;  Tyler  v.  Poppe, 
4  Edw.  Ch.  (N.  Y.)  430;  Shotwell 
V.  Smith,  3  Edw.  Ch.  (N.  Y.)  588; 
Willis  V.  Corliss,  2  Edw.  Ch.  (N. 
Y.)  281,  287;  Haggarty  V.  Pitt- 
man,  1  Paige  Ch.  (N.  Y.)  298, 
19  Am.  Dec.  434;  Wooding 
V.  Malone,  30  Ga.  979;  Edie  v. 
Applegate,  14  Iowa,  273;  Cofcr  v. 
Echerson,  6  Iowa,  502;  Blondheim 
V.  Moore,  11  Md.  365,  374;  Clark  v. 
Ridgely,  1  Md.  Ch.  Dec.  70;  Welche 
V.  Schoenbcrg,  45  Misc.  126,  91  N. 
Y.  Supp.  880;  ^tna  Life  Ins.  Co. 
V.  Brocket,  166  Ind.  576,  77  N.  E. 
1092;  West  v.  Adams,  as  trustee, 
etc.  106  111.  App.  114;  Rickey  v. 
Guild,  99  111.  App.  451 ;  Good'en  v. 
Vinke,  87   111.    App.    562;    Glos    v. 


Roach,  80  111.  App.  283. 

90  Cone  V.  Coombs,  5  McCr.  C.  C. 
651,   18  Fed.  576. 

^^Hursh  V.  Hursh,  99  Ind.  500; 
Waldron  v.  First  National  Bank, 
60  Neb.  245,  82  N.  W.  856.  See 
Browning  v.  Sire,  56  App.  Div.  399, 
67  N.  Y.  Supp.  798;  Roberts  v. 
Parker,  14  S.  D.  323,  85  N.  W.  591. 
See  also  Land  Title  &  Trust  Co.  v. 
Kellogg,  73  N.  J.  Eq.  524,  68  Atl. 
80;  Ball  v.  Marske,  202  111.  31,  66 
N.  E.  845. 

^^  Shotwell  V.  Smith,  3  Edw.  Ch. 
(N.  Y.)  588;  Pullan  v.  Cincinnati 
&  C.  R.  R.  Co.  4  Biss.  C.  C.  35. 
See  j^tna  Life  Ins.  Co.  v.  Broeker, 
166  Ind.  576,  77  N.  E.  1092 ;  Rogers 
V.  Southern  Pine  Lumber  Co.  21 
Tex.  Civ.  App.  48.  51  S.  W.  26. 

93  Morris  v.  Branchaud,  52  Wis. 
187. 


1158  MORTGAGE    FORECLOSURES.  [§    794 

§  794.  Receivership  in  New  Jersey. — It  seems  that  the 
rule  in  New  York  and  in  other  states,  allowing  a  receiver 
where  the  premises  are  an  inadequate  security  for  the  debt, 
and  the  mortgagor,  or  other  party  personally  liable  therefor, 
is  insolvent,  has  never  been  adopted  in  New  Jersey,  where  a 
distinction  is  made  between  a  first  and  a  subsequent  mort- 
gagee, their  rights  being  essentially  different  in  that  state. 

The  first  mortgagee  has  a  legal  right  to  the  rents  and  prof- 
its, and  has  his  remedy  at  law  by  ejectment.  A  subsequent 
mortgagee  is  better  entitled  to  the  remedy  of  a  receiver,  be- 
cause he  has  no  right  at  law  to  the  possession  of  the  premises 
as  against  a  prior  mortgagee.'*  But  where  it  appears  that  the 
mortgagor  is  insolvent  and  has  removed  from  the  premises 
and  given  the  possession  thereof  to  a  party  who  occupies  them 
for  his  own  use  without  paying  rent,  and  it  also  appears  that 
the  mortgagor  is  committing  waste  and  that  the  premises  are 
an  insufficient  security  for  the  debt,  a  court  of  equity  will 
appoint  a  receiver  to  take  charge  of  the  property  while  the 
prior  mortgagee  is  prosecuting  his  ejectment  at  law  to  obtain 
possession  of  the  mortgaged  premises.'^ 

§  795.  Lien  of  mortgagee  on  rents  and  profits. — On 

a  condition  broken,  by  which  a  mortgagee  is  authorized  to 
commence  a  foreclosure,  he  will  have  an  equitable  lien  upon 
the  rents  and  profits  of  the  mortgaged  property,  if  it  is  an  in- 
adequate security  for  the  debt,  which  lien  may  be  enforced  by 
proper  proceedings;'^  but  if  he  makes  no  demand  for  the 
rents,  and  takes  no  steps  to  have  them  applied  to  his  debt, 
the  mortgagor  can  continue  to  collect  them,"  because  until 
the  mortgagee  takes  possession  of  the  premises  or  files  a  bill 
for  foreclosure  and  procures  the  appointment  of  a  receiver, 

^^Cortleyeu  v.  Hathaimy,   UN.  Hunter  v.  Hays,  7  Biss.  C.  C.  362; 

J.   Eq.    (3  Stockt.)   40,  42,  64  Am.  Strain  v.  Palmer,  159  Fed.  628,  86 

Dec.  478.  C  C.  A.  618  (Mont.) 

95  Brasted  v.  Sutton,  30  N.  J.  Eq.  9?  Hunter  v.  Hays,  7  Biss.  C.  C. 

(3  Stew.)  462.  362. 

^^  Jacobs  V.  Gibson,  9  Neb.  380; 


§    796]  RECEIVER.  1159 

the  mortgagor  is  "owner  to  all  the  world,"  and  is  entitled  to 
all  the  profits  made." 

Where  an  assignee  in  bankruptcy  is  collecting  the  rents 
and  profits,  if  the  mortgagee  desires  them  to  be  applied 
specifically  to  his  lien,  he  must  not  only  show  the  insufficiency 
of  the  security,  without  the  pernancy  of  the  rents  and  profits, 
but  he  must  also  intercept  them  before  they  reach  the  as- 
signee.^^  Where,  however,  only  one-sixth  of  the  mortgage 
debt  is  due,  and  the  premises  are  so  divided  that  a  part  can 
be  sold,  a  receiver  should  not  be  appointed  for  the  whole  of 
the  mortgaged  premises,  but  only  for  a  proportionate  part 
thereof,  sufficient  protection  being  afforded  thereby.^ 

Notwithstanding  the  changes  in  the  practice  of  foreclosing 
mortgages,  the  remedy  by  a  receiver  remains  the  same  under 
the  New  York  Code  of  Civil  Procedure  as  under  the  old 
chancery  practice,^  and  the  mortgagee  may  obtain  a  specific 
lien  upon  the  rents  and  profits  of  the  premises,  though  not 
pledged  in  the  mortgage  for  the  payment  of  the  debt,  by 
diligently  obtaining  the  appointment  of  a  receiver;  a  subse- 
quent mortgagee  may  thus  gain  an  advantage  over  a  prior 
mortgagee  as  to  the  rents  and  profits.^ 

§  796.  Receiver   of  deceased   mortgagor's  estate. — In 

the  appointment  of  receivers  in  mortgage  foreclosures,  no 
exception  is  made  in  favor  of  the  executors  or  administrators 
of  deceased  mortgagors.*     No  matter  who  the  defendants 

^^  American  Bridge  Co.  V.  Heidel-  Ch.  (N.  Y.)  43;  Thomas  v.  Brig- 
bach,  94  U.  S.  (4  Otto),  798,  800,  stocke,  4  Russ.  64.  See  post,  §  817. 
24  L.  ed.  322,  15  Alb.  L.  J.  294.  *  Jacobs  v.  Gibson,   9    Neb.    380. 

99  Foster   v.   Rhodes,     10    Bankr.  In  Kerchner  v.  Fairley,  80  N.  C.  24, 

Reg.  523.  the    plaintiff    mortgagee     was     ad- 

^  Hollenbeck  v.  Donnell,  94  N.  Y.  ministrator    of    one    of    two    mort- 

342.  reversing  29  Hun  (N.  Y.)  94.  gagors,  whose  heirs  and  the  other 

2  Hollenbeck  v.  Donnell,  94  N.  Y.  mortgagor   were   defendants   in   an 

342.  345.     See  Post  v.  Dorr,  4  Edw.  action   to    foreclose   the   mortgage ; 

Ch.  (N.  Y.)  412.  the  property  mortgaged  was  inade- 

^  Post  V.  Dorr,  4  Edw.   Ch.    (N.  quate  to  pay  the  debt,  and  the  mort- 

Y.)  412;  Howell  v.  Ripley,  10  Paige  gagor  in  possession  was  insolvent; 


1160  MORTGAGE    FORECLOSURES,  [§    796 

may  be,  if  the  mortgaged  property  will  probably  be  insuffi- 
cient to  discharge  the  mortgage  debt,  the  plaintiff  is  in  a 
position  to  demand  that  his  security  be  augmented  by  enough 
of  the  rents  and  profits  to  make  it  good.  There  is  no  good 
reason  for  making  an  exception  in  favor  of  the  representative 
of  a  deceased  mortgagor;  nor  can  a  court,  in  justice  to  the 
mortgagee,  do  so,  for  it  is  very  clear  that  rents  collected  by 
the  administrator  or  executor  v^ould  not  be  subject  to  the 
lien  of  the  mortgage,  but  would  belong  to  the  general  assets 
of  the  estate  and  be  distributed  accordingly  among  all  its 
creditors.^ 

When  a  receiver  is  sought  against  an  executor,  adminis- 
trator or  other  trustee,  to  collect  rents  and  to  manage  the 
estate,  it  must  be  established  by  suitable  proof  that  there 
has  been  some  positive  loss,  or  that  there  is  danger  of  loss 
of  the  funds,  as  by  waste,  or  misapplication,  or  apprehended 
insolvency,*  or  personal  fraud,'  or  misconduct,  or  neglegence 
on  the  part  of  such  trustee.  The  mere  poverty  of  the  trustee 
is  not  a  sufficient  cause  ;^  unfitness,^  or  an  abuse  of  the  trust, 
or  danger  of  insolvency,  or  some  other  sufficient  cause,  must 
be  shown.*" 


the  plaintiff  denied  an  alleged  pay-  insufficient  to   discharge  the  mort- 

ment  of  the  debt  and  the  existence  gage  debt,"  a  receiver  may  be  ap- 

of    assets    in    his    hands    applicable  pointed. 

thereto ;  the  court  held  that,  in  such  ^  Middletown  v.  Dodsivell,  13  Ves. 

a  case,  it  was  not  error,  on  appli-  266. 

cation  of  the  plaintiff,  to  appoint  a  'See    CJiaiitauqua    County    Bank 
receiver    to    secure    the    rents    and  v.  White,  6  N.  Y.  236.  57  Am.  Dec. 
profits  pending  the  litigation.  442;  McElwain  v.  Willis,  9  Wend. 
^Jacobs  V.  Gibson,    9    Neb.    380,  (N.  Y.)  548,  561;  Stileman  v.  Ash- 
383.     The    Nebraska  Code  of  Civil  down,  2  Atk.  477;  Edgell  v.  Hay- 
Procedure,  Gen.  Stat.  568,  §  266,  2d.  wood,  3  Atk.  357. 
subd.    provides    that,    "in  an  action  ^2   Story   Eq.  Jur.    (11th   ed.)    § 
for  the  foreclosure  of  a  mortgage.  386. 
when  the  mortgaged  property  is  in  ^  Anon.  12  Ves.  4. 
danger  of   being  lost,   removed   or  ^^  Middleton  v.  Dodswell,  13  Ves. 
materially   injured,   or   is   probably  266. 


§    797]  RECEIVER.  1161 

§  797.  Imminent  danger  of  loss  or  injury. — After  an 
action  for  foreclosure  has  been  commenced  and  it  is  made  to 
appear  that  the  property  in  litigation,  or  the  rents  and  profits 
thereof,  are  in  danger  of  loss  or  injury,  a  receiver  may 
be  appointed  to  take  charge  of  such  rents  and  profits  in  the 
interest  of  the  litigants;"  but  the  rents  and  profits  of  the 
mortgagee's  security  must  be  in  actual  danger  to  warrant 
such  an  appointment.^^  Thus,  if  the  mortgagor  of  an  estate, 
which  is  subject  to  a  rent  charge,  refuses  to  pay  the  rent,  a 
receiver  may  be  appointed. ^^  And  a  mortgagee  of  a  lease- 
hold, who  has  made  advances  to  prevent  eviction  for  non- 
payment of  rent  by  the  mortgagor,  may  have  a  receiver  ap- 
pointed, notwithstanding  the  fact  that  the  interest  on  the  mort- 
gage may  have  been  regularly  and  promptly  paid.^* 

If  it  appears  to  the  court  that  the  property  is  in  danger 
of  being  lost  ^^  or  materially  injured,^^  or  if  there  is  reason  to 
apprehend  that  the  mortgagee  will  be  in  a  worse  situation 
if  the  appointment  is  delayed,"  the  appointment  of  a  receiver 
will  be  granted  almost  as  a  matter  of  course.^^     Thus,  it  is 

^^  Newport  &  Cin.  Bridge  Co.  v.  ^^  Kelly  v.   Stanton,   1   Hog.  393. 

Douglass,.    12     Bush     (Ky.)     673;  ^^  Bloodgood    v.    Clark,    4    Paige 

Ferguson    v.    Dickinson,  138  S.  W.  Ch.   (N.  Y.)   577;  Evans  v.  Coven- 

221    (Tex.    Civ.    App.).     See  Shot-  try,    5    DeG.,    M.    &   G.    811,   918; 

well  V.  Smith,  3  Edw.  Ch.   (N.  Y.)  Metcalfe  v.  Pulvertoft,  1  Ves.  &  B. 

588;    Verplank  v.   Caines,   1   Johns.  180. 

Ch.  (N.  Y.)  57;  Morrison  v.  Buck-  ^^  Williamson  v.  Wilson,  1  Bland 

ner,  Hempst.   C.   C.  442;    Tysen  v.  Ch.    (Md.)    421;    Chace's    Case,    1 

Wabash  R.  Co.  8  Biss.  C.  C.  247;  Bland  Ch.   (Md.)  213,  17  Am.  Dec. 

Parkhurst  V.  Kinsman,  2  Blatchi.  C.  277;   Levenson  v.  Elson,  88  N.   C. 

C.  78 ;  Lloyd  v.  Passingham,  16  Ves.  182. 

59,   N.   Y.   Code   Civ.    Proc.    §   713.  ^"^  Thomas  v.  Davies,  U  Bt^iV.  29; 

See  Meridian  Oil  Co.  v.  Randolph,  Metcalfe   v.    Pulvertoft,    1    Ves.    & 

26  Okla.  634,  110  Pac.  722;  Phila-  B.  180;  Aberdeen  v.  Chitty,  3  Y.  & 

dclphia  Mortgage   &   Trust   Co.   v.  C.  370,  382. 

Oyler,  61  Xeb.  702,  85  N.  W.  899.  ^^  Oldfield  v.  Cobbett,  4  L.  J.  Ch. 

^^  Chase's     Case,     1     Bland     Ch.  (N.    S.)    272;   Middleton  v.  Dods- 

(Md.)  266,  17  Am.  Dec.  277.  well,  13  Ves.  266. 

^3  Pritchard  v.  Flectivood.  1 
Meriv.  54;  Harris  v.  Shee,  1  J.  & 
LaT.  92,  6  Ir.  Eq.  543. 


1162  MORTGAGE    FORECLOSURES.  [§    798 

thought  that  the  court  may,  in  its  discretion,  appoint  a  re- 
ceiver of  the  rents  and  profits  during  the  pendency  of  a 
foreclosure,  where  it  appears  that  the  premises  are  chiefly 
valuable  for  use  during  the  continuance  of  an  oil  business, 
and  that  they  are  rapidly  depreciating  in  value  by  reason  of 
the  fact  that  the  oil  business  is  rapidly  decreasing  at  that 
point.^^  Reason  for  apprehending  that  the  rents  and  profits 
will  be  lost  and  the  security  thereby  impaired,  is  the  primarv 
ground  for  appointing  a  receiver.^" 

§  798.  Accumulation  of  taxes  and  interest,  ground  for 
appointing  a  receiver. — In  proceedings  to  foreclose  a 
mortgage,  a  receiver  should  be  appointed  on  the  application  of 
the  plaintiff  in  a  case  where  the  mortgaged  premises  are  an 
inadequate  security  for  the  debt,  or  where  he  has  no  per- 
sonal security  and  the  mortgagor  has  not  paid  the  interest 
or  the  taxes  on  the  premises,^^  even  though  the  unpaid  taxes 
may  be  a  lien  subsequent  to  the  mortgage.^^  Where  it  is 
shown  that  the  mortgaged  premises  are  about  to  be  sold  for 
taxes,  a  receiver  will  be  immediately  appointed.^ 

i^  Smith  V.  Kelley,  31   Hun    (N.  Placerville  &  S.  V.  R.  Co.  66  Cal. 

Y.)  387.  606;  Buchanan  v.  Berkshire  L.  Ins. 

^0  Rollins  V.  Henry,  77  N.  C.  467.  Co.  96  Ind.  510;  Callanan  v.  Shaiv, 

Where  the  defendant  in  an  action  19  Iowa,  183;  Clagett  v.  Salmon,  5 

to  foreclose  a  trust  deed  on  a  mill  Gill    &    J.     (Md.)    314;    Brown    v 

property  suffered  it  to  be  idle,  and  Chase,     Walk.     Ch.     (Mich.)     43 

the  plaintiffs  took  possession  of  and  Stockman  v.    Wallis,  30  N.  J.   Eq 

managed  it,  the  court  held  that  nei-  (3  Stew.)  449;  Johnson  v.  Tucker,  2 

ther  the  mill  nor  the  rents  were  in  Tenn.   Ch.  398.     See  also  Haas  v 

such  "danger  of  being  lost  or  ma-  Chicago    Building    Society,    89    111 

terially    injured"    as    entitled    the  498;    Brasted   v.   Sutton,   30   N.   J 

plaintiffs   to  the  appointment  of   a  Eq.    (3    Stew.)    462;    Chetwood   v 

receiver.    Sleeper  w.  Iselin,  59  Iowa,  Coffin,  30  N.  J.  Eq.  (3  Stew.)  450 

379.  Oliver  v.  Decatur,  4  Cr.  C.  C.  458 

^^Mahon   v.    Crothers,   28    N.    J.  Gale   v.    Carter,    154  111.    App.   478 

Eq.  (1  Stew.)  567;  Finch  v.  Hough-  But  see  Ferguson  v.  Dickinson,  138 

ton,  19  Wis.  149.     See  Sidenberg  v.  S.  W.  221    (Tex.  Civ.  App.) 

Ely,  90  N.  Y.  257,  43  Am.  Rep.  163 ;  22  Chetwood   v.   Coffin,  30   N.   J. 

Wall   Street  Ins.   Co.   v.   Loud,   20  Eq.  (3  Stew.)  450. 

How.    (N.  Y.)    Pr.  95;  McLane  v.  ^^  Darusmont    v.    Patton,    4    Lea 


§  799] 


RECEIVER. 


1163 


§  799.  Waste  and  fraud,  causes  for  appointing  a  re- 
ceiver.— Where  waste  has  been  committed  by  a  person  in 
possession  of  the  property,  or  it  has  depreciated  in  vakie 
through  the  fault  and  negligence  of  the  mortgagor  in  posses- 
sion, or  where  he  is  mis-applying  the  rents  and  profits,  the 
mortgagee  will  be  entitled  to  the  appointment  of  a  receiver.^* 
Thus,  although  a  mortgagor  has  a  right  to  cut  timber,  yet 
where  he  has  become  insolvent  and  exercises  this  right  in 
bad  faith,  a  receiver  will  be  appointed  to  take  charge  of  the 
premises,^* 


(Tenn.)  597.  See  Haas  v.  Chicago 
Building  Society,  89  111.  498 ;  Orten- 
gren  v.  Rice,   104  111.  App.  428. 

24  Wall  St.  Fire  Ins.  Co.  v.  Loud, 
20  How.  (N.  Y.)  Pr.  95;  Worrill 
V.  Coker,  56  Ga.  666;  Haas  v.  Chi- 
cago Building  Soc.  89  111.  498; 
Brasted  v.  Sutton,  30  N.  J.  Eq.  (3 
Stew.)  462;  Chetwood  v.  Coffin,  30 
N.  J.  Eq.  (3  Stew.)  450;  Stockman 
V.  Wallis,  30  N.  J.  Eq.  (3  Stew.) 
450;  Mahon  v.  Crothers,  28  N.  J. 
Eq.  (1  Stew.)  567;  Johnson  v. 
Tucker,  2  Tenn.  Ch.  398;  Finch  v. 
Houghton,  19  Wis.  149;  Oliver  v. 
Decatur,  4  Cr.  C.  C.  458.  See  Chap- 
pell  V.  Boyd,  56  Ga.  578;  Tufts  v. 
Little,  56  Ga.  139;  Farmers'  Loan 
&  Trust  Co.  V.  Meridian  Water- 
works Co.  139  Fed.  661   (Miss.) 

25  Or  he  may  be  restrained  by  an 
injunction.  Ensign  v.  Colburn,  11 
Paige  Ch.  (N.  Y.)  503.  It  has  been 
said  that  the  mortgage  covers  the 
timber  standing  on  the  premises, 
and  that  when  it  is  severed  from 
the  freehold  without  the  consent 
of  the  mortgagee,  he  has  a  right  to 
hold  it  as  a  part  of  his  security. 
Hut  chins  v.  King,  66  U.  S.  (1 
Wall.)  53,  17  L.  ed.  693.  But  the 
general  doctrine  seems  to  be  that 
the      mortgagee     cannot     maintain 


trover  for  trees  cut  by  the  mort- 
gagor. Johnson  v.  White,  11  Barb. 
(N.  Y.)  194;  VanWyck  v.  Alliger, 
6  Barb.  (N.  Y.)  507;  Watson  v. 
Hunter,  5  Johns.  Ch.  (N.  Y.)  169, 
9  Am.  Dec.  295;  Winship  v.  Pitts, 
3  Paige  Ch.  (N.  Y.)  259;  People 
V.  Alberty,  11  Wend.  (N.  Y.)  160. 
Yet  it  is  held  that  where  the  mort- 
gagor is  insolvent,  the  mortgagee 
may  maintain  an  action  for  an  un- 
authorized injury  to  the  mortgage 
security.  Morgan  v.  Gilbert,  2 
Flip  C.  C.  645,  2  Fed.  835 ;  Willard's 
Eq.  Jur.  371,  379.  After  the  timber 
upon  the  mortgaged  premises  has 
been  severed  from  the  freehold,  a 
court  of  equity  cannot  restrain  its 
removal;  Johnson  v.  White,  11 
Barb.  (N.  Y.)  194;  VanWyck  v. 
Alliger,  6  Barb.  (N.  Y.)  507;  Wat- 
son v.  McClay,  5  Johns.  Ch.  (N. 
Y.)  169,  9  Am.  Dec.  295 ;  Hawley  v. 
Clowes,  2  Johns.  Ch.  (N.  Y.)  122; 
Ensign  v.  Colburn,  11  Paige  Ch.  (N. 
Y.)  503;  Winship  v.  Pitts,  3  Paige 
Ch.  (N.  Y.)  259;  People  v.  Alberty, 
11  Wend.  (N.  Y.)  160,  2  Story  Eq. 
Jur.  (11th  ed.)  §§  1016,  1017;  Wil- 
lard's Eq.  Jur.  371,  379;  but  will  re- 
strain further  waste,  Weatherby  v. 
Wood,  29  How.  (N.  Y.)  Pr.  404, 
and   decree   an   accounting   for   the 


1164  MORTGAGE    FORECLOSURES.  [§    800 

Pending  an  appeal  in  a  mortgage  foreclosure,  a  receiver 
may  be  appointed  to  preserve  the  rents  and  profits,  v^here 
such  rents  and  profits  are  being  wasted  by  an  heir  in  posses- 
sion.^^ In  case  there  is  fraudulent  conduct  on  the  part  of  the 
mortgagor,  combined  with  danger  of  injury  to  the  mortgaged 
premises,  a  receiver  will  be  appointed  to  take  charge  of  the 
rents  and  profits  and  to  preserve  the  mortgaged  property ;  ^' 
but  in  such  a  case,  the  pleadings  should  contain  allegations 
of  specific  charges  of  fraud  or  of  imminent  danger  of  injury 
to  the  property.^* 

§  800.  Injunction  restraining  sale,  cause  for  appointing 
a  receiver. — In  a  case  where  the  mortgagor  has  obtained 
an  injunction  restraining  the  sale  of  the  mortgaged  premises, 
until  certain  counter-claims  can  be  passed  upon  and  the  sum 
really  due  on  the  mortgage  is  ascertained,  the  mortgagee 
will  be  entitled  to  have  a  receiver  appointed  to  take  charge 
of  the  property  and  to  secure  the  rents  and  profits  thereof, 
where  they  are  in  danger  of  being  lost.^^ 

In  Warwick  v.  Hammell,'"  a  second  mortgagee  had  ob- 
tained an  order  of  sale  in  a  foreclosure,  and  a  stay  was  pro- 
cured by  a  third  person,  who  attacked  the  plaintiff's  title  to 
the  mortgage  in  a  court  of  equity.  The  mortgagor  in  posses- 
timber  cut,  Johnson  v.  White,  11  v.  Moore,  11  Md.  365;  Furlong  v. 
Barb.  (N.  Y.)  197;  Spear  v.  Cutter,  Edwards,  3  Md.  99;  Thompson  v. 
5  Barb.  (N.  Y.)  486,  2  N.  Y.  Code  Diffenderfer,  1  Md.  Ch.  Dec.  489; 
100,  2  Story  Eq.  Jur.  (11th  ed.)  Mays  v.  Rose,  I  Freem.  Ch.  (Miss.) 
§§  957,  1016,  1017.  703;  Maynard  v.  Railey,  2  Nev.  313; 

^^  Brinkman  v.  Ritsinger,  82  Ind.  Ladd  v.  Harvey,  21  N.  H.  (1  Post.) 
358.  514;  Mordaunt  v.  Hooper,  1  Amb. 

27  See  Orphan  Asylum  v.  McCar-      311;  Lloyd  v.  Passingham,  16  Ves. 
ice,  Hopk.  Ch.  (N.  Y.)  429;  Tom-      59;  Middleton  v.  Dodswell,  13  Ves. 
linson  V.  Ward,  2  Conn.  396;  Powell      266;    Hugonin   v.    Basley,    13    Ves. 
V.  Quinn,  49  Ga.  523;  Crawford  v.       105;  Anon.  12  Ves.  4. 
Ross,  39  Ga.  44;  Jones  v.  Dougher-  ^^  Pozvell  v.  Quinu.  49  Ga.  523. 

ty,    10    Ga.    273;    Voshell   v.    Hyn-  ^^  Oldham   v.    Wilmington    Bank, 

son,  26  Md.  83 ;  Haight  v.  Burr,  19      84  N.  C.  304. 
Md.    134;   State  v.  Northern   Cent.  30 32  N.  J.  Eq.  (5  Stew.)  427. 

R.  R.  Co.  18  Md.   193;  Blondheim 


§    801]  RECEIVER.  1165 

sion  of  the  premises  was  insolvent,  and  neither  the  taxes  nor 
the  interest  on  any  of  the  incumbrances  having  been  paid 
for  three  years,  the  second  mortgagee  was  held  to  be  entitled 
to  a  receiver  of  the  rents  and  profits  of  the  mortgaged  prem- 
ises, pending  the  litigation  with  the  person  attacking  his  title 
to  the  mortgage. 

§  801.  When  a  receiver  will  not  be  appointed — Mort- 
gagor giving  security. — Where  the  mortgaged  property 
is  of  such  value,  that  the  debt  can  be  paid  from  the  proceeds 
of  a  sale  of  the  premises  under  foreclosure,  a  receiver  will 
not  be  appointed  ;^^  and  if  the  party  in  possession  of  the 
premises,  as  owner  of  the  equity  of  redemption,  is  solvent, 
there  is  no  such  reasonable  cause  for  a  receiver  as  will  war- 
rant an  appointment,  although  the  mortgagor  himself  may  be 
insolvent.^^ 

A  court  has  no  authority  to  interfere  with  a  mortgagor's 
right  to  collect  the  rents  and  profits  of  the  mortgaged  prem- 
ises, unless  such  rents  and  profits,  as  well  as  the  property. 
have  been  pledged  as  security  for  the  payment  of  the  debt, 
or  unless  a  clear  want  of  sufficient  security,  or  waste,  or  fail- 
ure to  pay  taxes,  or  diminution  of  the  value  of  the  security, 
or  mismanagement  of  the  property,  or  an  increase  of  the 
mortgage  debt  is  shown.^^  A  receiver  will  not  be  appointed, 
in  the  absence  of  any  of  the  causes  above  set  forth,  merely 
because  the  mortgagee  wishes  to  turn  the  rents  and  profits 
to  his  own  use,  when  such  appointment  will  be  to  the  injury 

^^  Williams   v.    Noland,   2   Tenn.  (N.  Y.)  588;  Bank  of  Ogdensburg 

Ch.  151.     See  Worrill  v.  Coker,  56  v.  Arnold,  5  Paige  Ch.  (N.  Y.)  38; 

Ga.  666;  Ptillan  v.  Cincinnati  &  C.  Quincy  v.  Cheeseman,  4  Sandf.  Ch. 

O.  R.  Co.  4  Biss.  C.  C.  35;  Rabino-  (N.  Y.)  405;  Eslava  v.  Crampton, 

witz  V.  Power,  131  App.  Div.  892,  61  Ala.  507;  Sales  v.  Lusk,  60  Wis. 

115  N.  Y.  Supp.  266.  490,  18  Rep.  382;  Morris  v.  Branch- 

^^  Silverman      v.      Northwestern  and,   52   Wis.    187;   Pullan   v.   Cin- 

Mut.  L.  Ins.  Co.  5  111.  App.  124.  cinnati  &c.  R.  Co.  4  Biss.  C.  C.  35. 

33  Shotwell  V.  Smith,  3  Edw.  Ch. 


1166  MORTGAGE    FORECLOSURES.  [§    802 

of  a  prior  mortgagee ;  ^*  nor  will  a  receiver  be  appointed  on 
the  application  of  one  defendant  as  against  another.^® 

Even  if  there  are  reasonable  grounds  for  believing  that 
the  mortgage  security  is  inadequate  to  satisfy  the  debt,  a 
receiver  will  not  be  allowed  on  the  application  of  the  plain- 
tiff, if  the  person  in  possession  of  the  mortgaged  premises, 
or  the  party  liable  for  the  deficiency,  gives  security  to  account 
for  the  rents  and  profits  as  the  court  shall  direct,  in  case 
there  is  a  deficiency  upon  the  sale  of  the  premises  under  a 
decree  of  foreclosure.^^  Where  the  rents  and  profits  of  the 
mortgaged  premises  have  been  already  applied  to  the  pay- 
ment of  the  mortgage  debt,  and  of  the  necessary  expenses 
incurred  in  the  management  and  care  of  the  property,  an 
application  for  the  appointment  of  a  receiver  will  be  denied.^' 

§  802.  Where  part  only  of  debt  due,  or  premises  can  be 
sold  in  parcels. — In  those  cases  where  the  whole  debt  is 
not  due,  if  the  mortgagee  has  neglected  to  take  a  specific 
pledge  of  the  rents  and  profits  of  the  mortgaged  premises  as 
security  for  his  debt  before  it  becomes  due,  he  will  have  no 
equitable  right  to  the  rents  and  profits  in  the  meantime,^^ 
and  a  receiver  will  not  be  appointed  on  his  application,  ex- 
cept possibly  in  case  of  the  death  of  the  mortgagor.^^ 

^^  Sales  V.  Lusk,  60  Wis.  490,  18  ^"^  My  ton  v.  Davenport,  51  Iowa, 

Rep.  382.  583.    See  Cortleyeu  v.  Hathaway,  11 

^^  Robinson  v.  Hadley,   11    Beav.  N.  J.  Eq.    (3   Stockt.)   39,  64  Am. 

614.  Dec.  478. 

36  Sea    Ins.    Co.    v.    Stebbins,    8  ^8  Bank  of  Ogdensburg  v.  Arnold, 

Paige  Ch.  (N.  Y.)  565.    See  Harper  5  Paige  Ch.  (N.  Y.)  38.    See  Astor 

V.  Grambling,  66  Ga.  236;  Rich  v.  v.    Turner,    11    Paige   Ch.    (N.   Y.) 

Colquitt,  65   Ga.   113;   Grantham  v.  436,  43   Am.    Dec.   766;   Howell  v. 

Lucas,   15    W.    Va.   425;    Talbot   v.  Ripley,   10   Paige   Ch.    (N.   Y.)    45. 

Hope  Scott,  4  Kay  &  J.  141 ;  Pritch-  39  Burrowes   v.   Malloy,   2   Jo.    & 

ard  V.  Fleetwood,  1  Meriv.  54;  Cur-  LaT.  521. 
ling  V.    Toiunshend,    19    Ves.    633. 
Compare  Clark  v.  Johnston,  15  W. 
Va.  804. 


§    803]  RECEIVER.  1167 

Where  only  a  portion  of  the  mortgage  debt  is  due  and  no 
waste  or  failure  to  pay  taxes,  or  diminution  of  value  of  the 
security,  or  increase  of  the  mortgage  debt  is  shown,*"  and 
the  mortgaged  premises  are  capable  of  being  divided  and  sold 
in  parcels  separately  without  injury  to  the  parties  interested, 
in  the  absence  of  any  pledge  or  specific  appropriation,  by 
which  accruing  rents  of  that  portion  of  the  premises  not 
yet  liable  to  be  sold,  are  constituted  a  security  to  the  mort- 
gagee for  the  portion  of  the  mortgage  not  yet  due,  he  will 
not  be  entitled  to  a  receivership,  for  the  protection  of  the  un- 
matured portion  of  the  debt,  of  that  portion  of  the  premises 
for  the  sale  of  which  he  has  no  accrued  right.*^ 

§  803.  Where  mortgagee  guilty  of  laches — Validity  of 
mortgage  denied. — Where,  from  lapse  of  time  or  other 
circumstances,  a  mortgage  is  presumed  to  have  been  paid,  a 
receiver  will  not  be  allowed.*^  Thus,  in  a  case  where  a  mort- 
gagee delayed  his  suit  for  foreclosure  and  permitted  the  mort- 
gagor to  use  the  property  for  several  years,  and  after  a  de- 
cree was  rendered  and  a  sale  ordered,  neglected  to  enforce 
the  same,  a  motion  for  the  appointment  of  a  receiver  was 
denied,  the  court  saying:  "While  it  is  true  that  the  mort- 
gagee may  delay  his  suit  for  foreclosure  after  the  debt  is  due 
and  default  of  the  mortgagor  to  pay  it,  yet  if  he  delays  his 
remedy  and  permits  the  mortgagor  to  use  the  property  for 
several  years,  a  very  strong  case  of  probable  injury  to  the 
rights  of  the  mortgagee  must  be  made  out,  and  there  must 
be  a  pressing  necessity  for  the  interposition  of  the  court ;  and 
if,  as  in  this  case,  a  decree  has  been  rendered  and  a  sale  or- 
dered, and  the  mortgagee  still  neglects  to  have  it  enforced, 

*^  Morris  v.   Branchaud,  52  Wis.  burg  v.  Arnold,  5  Faige  Ch.  (N.  Y.) 

187.     See  also  May  field  v.    Wright  38,    40;    Quincy    v.    Cheeseman,    4 

as  trustee,  etc.   107  Ky.  530.  54   S.  Sandf.  Ch.   (N.  Y.)  405;  Morris  v. 

W.  864.  Branchaud,  52  Wis.   187. 

^'^Hollenhack   v.   Barnard,  94  N.  '^^  Shepherd  v.   Murdoch,  2   Mol- 

Y.  342.    See  Wyckoff  v.  Scofield.  98  loy,  531 ;  Darcy  v.  Blake,  1  Molloy, 

N.  Y.  475,  477;   Bank   of  Ogdcns-  247. 


1168  MORTGAGE    FORECLOSURES.  [§    804 

the  emergency  must  be  grave,  and  an  imperative  necessity  for 
the  relief  be  shown  to  exist,  before  a  court  will  exercise  this 
extraordinary  jurisdiction."  *^ 

The  appointment  of  a  receiver  of  the  rents  and  profits  of 
mortgaged  premises  being  for  the  purpose  of  enforcing  the 
payment  of  the  debt  simply,  a  receiver  should  not  be  ap- 
pointed to  take  charge  of  the  rents  and  profits  in  those  cases 
where  the  validity  of  the  mortgage  is  impeached  on  probable 
grounds.** 

§  804.  Where  property  in  possession  of  stranger  to 
the  foreclosure. — A  court  will  not  appoint  a  receiver  of 
the  rents  and  profits  of  property  in  the  possession  of  a  stranger 
to  the  suit ;  *^  and  when  a  tenant,  who  is  not  a  party  to  the 
action,  is  in  possession,  his  possession  will  not  be  disturbed 
by  the  appointment  of  a  receiver,  but  he  may  be  ordered  to 
attorn  to  the  receiver  and  to  pay  the  rent  to  him.** 

Where  a  tenant  goes  into  possession  pendente  lite,  the 
mortgagee  will  be  entitled  to  an  order  requiring  him  to  yield 
possession  of  the  premises  or  to  pay  the  rent  from  that  time 
to  the  receiver;  but  he  will  have  no  right,  in  any  event,  to 
an  order,  especially  as  against  the  equitable  rights  of  others, 
which  will,  in  effect,  vest  in  him  the  possession  nunc  pro  tunc, 
as  of  a  time  prior  to  the  application.*' 

§  805.  Where  a  bill  is  filed  to  redeem. — Upon  a  bill  to 
redeem,  where  the  plaintiff  is  in  possession  of  the  premises, 

43  Cone  V.  Combs,  18  Fed.  576,  5  this    question    was   raised,   but   not 

McCrary  C.  C.  651.  passed  upon. 

'^'^  Leahy   v.   Arthur,   1    Hog.   92;  *^Sea    Ins.    Co.    v.    Stebbins,    8 

Shepherd    V.    Murdoch,    2    MoUoy,  Paige  Ch.   (N.  Y.)  565.     See  Bank 

531 ;  Darcy  v.  Blake,  1  MoUoy,  247.  of  Ogdensburg  v.  Arnold,  5  Paige 

^^Searles  v.  Jacksonville,  P.  &  M.  Ch.  (N.  Y.)  38.    As  to  the  doctrine 

R.  R.  Co.  2  Woods  C.  C.  621.    See  at    law    as    regards    a    tenant,    see 

Sea   Ins.   Co.  v.  Stebbins,  8   Paige  Rogers    v.    Humphreys,    5    Nev.    & 

Ch.    (N.  Y.)    565.     In  the  case  of  Mann.  511,  4  Ad.  &  El.  299. 

IVhorton  v.   Webster,  56  Wis.  356,  ^^  Zeiter  v.  Bowtnan,  6  Barb.  (N. 

Y.)   133. 


§    806]  RECEIVER.  1169 

and  they  are  ample  security  for  the  amount  admitted  by 
him  to  be  due.  the  court  will  not  appoint  a  receiver  of  the 
rents  and  profits  pending  the  litigation,  if  the  insolvency  of 
the  plaintiff  is  not  set  up,  or  if  it  is  alleged  and  denied.*^ 
In  no  case  can  a  receiver  be  allowed  on  a  bill  to  redeem, 
unless  the  person  in  possession  is  a  party  to  the  suit  or  a  ten- 
ant under  a  party. *^ 

The  fact  that  the  mortgagor  has  a  claim  against  the  mort- 
gagee arising  out  of  a  different  transaction,  which  claim, 
if  valid,  is  a  set-off  against  the  sum  due  upon  the  mortgage, 
but  which  is  not  established  nor  the  amount  thereof  adjusted, 
will  not  entitle  the  mortgagor  to  a  receiver  of  the  property 
in  the  hands  of  the  mortgagee.*" 

It  is  thought  that  the  purchaser  at  a  foreclosure  sale  of 
the  equity  of  redemption  in  mortgaged  lands  has  no  right, 
upon  seeking  redemption  from  the  mortgagee,  to  compel  the 
application  of  personal  property  embraced  in  the  same  mort- 
gage to  the  payment  of  the  mortgage  debt,  to  the  exoneration 
of  the  land;  and  the  appointment  of  a  receiver  to  take  charge 
of  such  personal  property,  upon  a  bill  filed  by  the  purchaser  to 
redeem  the  mortgaged  lands,  and  an  order  for  its  sale  and  the 
application  of  the  proceeds  to  the  payment  of  the  mortgage 
debt,  are  erroneous.*^ 

§  806.  When  rents  cannot  be  applied  under  a  re- 
ceiver.— If  a  mortgage  or  deed  of  trust  does  not.  in  ex- 
press terms,  create  a  specific  lien  upon  the  rents  and  profits 
of  the  mortgaged  property,  a  receiver  thereof  should  not  be 
appointed  for  the  benefit  of  those  interested  in  the  proceeds 
simply  upon  an  averment  in  the  bill  that  the  mortgaged  estate 
is  an  inadequate  security  for  the  payment  of  the  debt,  and 

^^  Jenkins  V.  Hinman,  5  Paige  Ch.  ^^  Bay  and    v.    Fellows,    28    Barb. 

(N.  Y.)  309.  (N.  Y.)   451. 

« Sea  Ins.  Co.  v.  Stebbins,  8  51  Lovelace  v.  Webb,  62  Ala.  271. 
Paige  Ch.  (N.  Y.)  565. 

Mortg.  Vol.  II.— 74. 


1170  MORTGAGE    FORECLOSURES.  [§    806 

that  the  mortgagor  is  insolvent ;  ^^  because,  in  the  absence  of 
a  specific  clause  giving  such  a  lien,^^  the  mortgagee  is  not 
entitled  to  and  has  no  lien  upon  the  rents  and  profits  prior  to 
the  foreclosure  sale,^*  and  the  mortgagor,  though  insolvent, 
may  collect  or  assign  them,"  until  such  time  as  the  mortgagee 
becomes  authorized  to  proceed  by  an  action  against  the  mort- 
gagor to  subject  the  property  to  the  payment  of  his  debt.*^ 

Where  a  mortgagee  who  has  neglected  to  take  a  specific 
pledge  of  the  rents  and  profits  of  tlie  premises,  obtains  an 
order  requiring  the  tenant  to  attorn  to  a  receiver  appointed 
in  a  foreclosure,  all  that  he  is  entitled  to  is  immediate  pos- 
session of  the  premises  as  security  for  the  payment  of  his 
debt."  A  mortgagee  becomes  entitled  to  the  rents  and  profits 
only  by  commencing  a  suit  to  foreclose  and  by  procuring  the 
appointment  of  a  receiver,  and  he  will  then  be  confined  to 
the  rents  and  profits  accruing  during  the  pendency  of  the 
suit.^*  He  does  not  thereby  acquire  a  lien  upon  rents  which 
have  already  accrued,  but  which  have  not  yet  come  into  the 
hands  of  the  owner  of  the  equity  of  redemption ;  ^^  nor  can 
the  court  order  rents  already  collected  and  in  the  possession 
of  the  owner  to  be  paid  over  to  the  receiver  and  applied  upon 

^2  Phoenix  Mut.  Life  Ins.   Co.  v.  gagor  to  secure  the  payment  of  the 

Grant,  3  McAr.   (D.  C.)  220.  rent.     Zeiter  v.   Bowman,  6   Barb. 

^^  Zeiter  v.  Bowman,  6  Barb.  (N.  (N.  Y.)   133. 

Y.)    133;   Bank    of   Ogdensburg   v.  ^^  St&  Syracuse  Bank  v.  Talhnan, 

Arnold,  5   Paige   Ch.    (N.   Y.)    38.  31  Barb.   (N.  Y.)  201;  Shoiwdl  v. 

See   Wyckoff  v.  Sco field,  98  N  Y.  Smith,  3   Edw.   Ch.    (N.   Y.)    588; 

475 ;  Argall  v.  Pitts,  78  N.  Y.  239.  Hughes  v.  Hatchett,  55  Ala.  631. 

^'^  Marshall     &    Ilsley    Bank    v.  ^6  g^e  Jacobs  v.    Gibson,  9   Neb. 

Cady,  76  Minn.  112,  78  N.  W.  978.  380. 

Where  a  mortgagee  has  neglect-  ^"^ Zeiter  v.  Bowman,  6  Barb.  (N. 

ed  to  take  a  specific  pledge  of  the  Y.)  133. 

rents   and   profits    of    the   premises  58  Argall  v.  Pitts,  78  N.  Y.  239. 

for  the  security  of  his  debt,  he  has  ^9  Wyckoff  v.  Scofield.  98  N.  Y. 

no  equitable  right  to  them  as  against  475 ;  Hollenbeck  v.  Donnell,  94  N. 

the  assignee  of  a  chattel  mortgage,  Y.  342. 
given  by  the  tenant   to   the  mort- 


§    8U8]  RECEIVER.  1171 

the  mortgage  debt,*"  because  the  equitable  lien  obtained  by  his 
appointment  extends  only  to  the  unpaid  rents. *^ 

Where  a  mortgagee  allows  a  mortgagor  to  remain  in 
possession  of  the  property  after  default,  the  mortgagor  may 
hold  the  rents  and  profits  to  his  own  use,  and  the  mortgagee 
cannot  compel  him  to  account  for  them,*^  though  the  mort- 
gaged property  may  have  become  an  insufficient  security. 

§  807.  When  receiver  applied  for  by  defendant. — A 
defendant  is  not  entitled,  as  a  matter  of  right,  to  the  ap- 
pointment of  a  receiver,  even  where  the  plaintiff,  in  his  com- 
plaint, has  asked  for  a  receiver ;  and  a  court  will  not  appoint 
a  receiver  on  a  defendant's  application,  if  it  is  opposed  by  the 
plaintiff  ;^^  neither  will  a  receiver  be  appointed  on  the  appli- 
cation of  one  defendant  as  against  another.^^ 

It  is  thought,  where  a  receiver  is  denied  to  a  defendant 
on  his  application  therefor,  that  he  can  obtain  the  desired 
relief  by  filing  a  cross-complaint  against  his  co-defendants 
and  the  plaintiff,  asking  for  the  appointment  of  a  receiver 
and  moving  his  appointment  in  such  cross-suit.*^ 

§  808.  Receiver  not  appointed  during  the  time  allowed 
for  redemption. — In  those  states  where  it  is  provided  by 

60  Wyckoff  V.  Scofield,  98  N.  Y.  614.     No  costs  will  be  given  to  the 

475 ;  Rider  v.  Bagley,  84  N.  Y.  461 ;  plaintiff  under  such  circumstances. 

Howell  V.  Ripley,  10  Paige  Ch.  (N.  ^'^  Robinson   v.   Hadley,   11    Beav. 

Y.)   43.  614.     In  this  case  the  court  refused 

6^  Wyckoff  V.  Scofield,  98  N.  Y.  to  appoint  a  receiver  for  the  prop- 

475 ;  Rider  v.  Bagley.  84  N.  Y.  461 ;  erty  in  the  hands  of  one  defendant 

Argall    v.    Pitts,    78    N.    Y.    239;  on   the   application   of   another   de- 

Mitchell  V.  Bartleft.  51   N.  Y.  447;  fendant,  and  gave  as  a  reason  for 

Astor  V.  Turner.  11  Paige  Ch.   (N.  such   refusal,   that  it   knew   no   in- 

Y.)  436,  43  .A.m.  Dec.  766; //owe// V.  stance   of    a    receiver   having    been 

Ripley,   10  Paige  Ch.    (N.  Y.)    43;  appointed   upon   the   application   of 

Lofsky  v.  Maujer,  3  Szndi.  Ch.  (N.  one    defendant    as    against   another 

Y.)  69.  defendant,  prior  to  a  hearing. 

^^  Doxv  V.  Memphis  &  L.  R.  R.  R.  ^^  McCracken   v.    Ware,  3    Sand. 

Co.  20  Fed.  768.  (N.  Y.)  688. 

^Robinson  v.   Hadley,   11    Beav. 


1172  MORTGAGE    FORECLOSURES.  [§    808 

Statute  that  a  mortgagor  shall  have  a  specified  time  in  which 
to  redeem  the  mortgaged  premises  from  a  sale  made  under 
a  foreclosure,  the  mortgagee  is  not  entitled  to  have  a  receiver 
appointed  to  take  charge  of  the  crops,  rents  and  profits  of  the 
mortgaged  premises  during  such  period  allowed  for  redemp- 
tion, the  mortgagor  having  a  right  to  the  possession  of  the 
property  during  that  period,  and  the  mortgagee  having  no  in- 
terest whatever  in  such  crops,  rents  and  profits. ^^ 

In  Illinois,  however,  a  receiver  may  be  appointed  during 
the  redemption  period  where  the  security  is  insufficient.®'' 

It  has  been  held  that  the  Indiana  statute,®'  providing  for 
the  appointment  of  a  receiver  "in  actions  for  the  foreclosure 
and  sale  of  property,  where  it  is  in  danger  of  being  lost,  re- 
moved or  injured,  or  is  not  sufficient  to  discharge  the  debt," 
applies  only  to  the  time  before  the  sale,  and  that  while  the 
mortgagor  remains  in  possession  of  the  premises  during  the 
year  of  redemption  after  the  sale,  a  receiver  should  not  be  ap- 
pointed.®^ 

A  statutory  provision  that  the  mortgaged  premises  may 
be  used  by  a  mortgagor  during  the  period  allowed  for  re- 
demption in  the  same  manner  in  which  they  were  previously 
used,  may  be  waived  by  express  contract.'"  It  has  been  held 
that,  under  the  Michigan  statute,''^  a  clause  in  the  mortgage 
giving  the  mortgagee  possession  in  case  of  default,  cannot 
be  carried  into  effect  by  appointing  a  receiver  in  a  foreclosure 

66  White  V.  Griggs,  54  Iowa,  650;  68  Acts  1879,  p.  169. 

Lapham  v.  Ives,  8  Rep.  6,  13  West.  69  sheek    v.    Klotz,   84    Ind.    471. 

Jur.  357,  25  Int.  Rev.  Rec.  186.  See  also   World  Building  Loan   &■ 

^  Shaeppi    v.    Bartholomae,    217  Investment  Co.  v.  Marlin,  151  Ind. 

111.    105,    1    L.R.A.(N.S.)    1079,    75  630,  52  N.  E.  198. 

N.    E.  447 ;   Boruff  v.   Hinkley,   66  "^^  Edwards  v.  Woodbury,  1  McCr. 

111.  App.  274;  Fountain  v.  Walther,  C.  C.  429,  3  Fed.  14. 

66  111.  App.  529 ;    Wright  v.   Case,  '^  Comp.  L.  §  6263.     This  statute 

69  111.  App.  535 ;  Pringle  v.  James,  excludes  the  mortgagee  from  pos- 

109  111.  App.  100.     See  also  Stevens  session  until  he  acquires  an  absolute 

as  adm'x  etc.  v.  Hadfield,   196  111.  title. 
253,  63  N.  E.  633. 


§    809]  RECEIVER.  1173 

until  after  default;  and  that,  even  then,  it  will  be  a  matter  of 
discretion.'^ 

Under  the  Oregon  statute,  which  provides  that  ''a  mort- 
gage of  real  property  shall  not  be  deemed  a  conveyance  so 
as  to  enable  the  owner  of  the  mortgage  to  recover  possession 
of  the  real  property  without  a  foreclosure  and  sale  according 
to  law,"  a  mortgagee  is  not  entitled  to  the  rents  and  profits 
before  foreclosure.'^  Where  a  married  woman  mortgaged 
her  separate  property  under  this  statute  to  secure  the  debt 
of  her  husband,  and  the  mortgagee,  before  the  sale  of  the 
same,  to  satisfy  the  debt,  entered  and  took  the  rents  with- 
out the  consent  of  the  wife,  the  court  held  that  he  was  not 
entitled  to  credit  the  same  on  the  husband's  debt,  but  was 
liable  to  the  wife  as  for  the  use  and  occupation  of  the  prem- 

74 

ises. 

§  809.  Receivers   as  between   different  mortgagees. — 

Subsequent  mortgagees  are  entitled  to  the  appointment  of 
a  receiver  of  the  rents  and  profits  of  the  mortgaged  premises 
on  a  petition  showing  that  the  mortgaged  property  is  of  less 
value  than  the  amount  of  the  incumbrances.'^  Where  an 
action  is  brought  to  foreclose  a  mortgage  and  all  the  lien- 
holders  are  made  parties,  and  a  receiver  is  appointed  upon 
the  application  of  one  of  the  mortgagees,  but  such  appoint- 
ment is  not  limited  to  any  party  or  lien,  and  it  afterwards 
appears  that  the  appointment  was,  in  fact,  necessary  for  all 
the  lienholders,  the  fund  collected  by  the  receiver  should  be 
treated  as  a  part  of  the  general  security  of  the  mortgagees, 
and  be  controlled  and  distributed  according  to  their  priori- 
ties.'^ But  if  the  receiver  is  appointed  on  the  motion  and  for 
the  benefit  of  a  particular  lienholder,  such  appointment  will 

"^^Beeclter  v.  Marquette  &  P.  R.  "^^  Buchanan  v.  Berkshire  Life  Ins. 

Mill  Co.  40  Mich.  307.  Co.  96   Ind.   510.     See   Goddard  v. 

73  Teal  V.  Walker,  HI  U.  S.  242,  Clarke,  81  Neb.  2,7Z,  116  N.  W.  41. 

28  L.  ed.  415,  4  Sup.  Ct.  Rep.  420.  '6  Williamson  v.  Gerlach,  41  Ohio 

"^^Scmple  V.  Bank  of  British  Co-  St.  682.    See  Anderson  w  Matthews, 

lumbia,  5  Sawy.  C.  C.  394.  8  Wyo.  513,  58  Pac.  898. 


1174  MORTGAGE    FORECLOSURES.  [§    810 

be  for  his  benefit  only ;  '"^  but  the  receivership  may  be  subse- 
quently extended  to  one  or  more  of  the  other  Hens.'* 

Where  the  appointment  is  not  hmited  to  any  party  or 
lien,  it  is  of  no  consequence  upon  whose  application  the 
appointment  was  made,  for  the  fund  collected  by  the  receiver 
under  such  an  appointment  will  not  be  appropriated  to  any 
particular  claim.  Thus,  in  a  case  where  a  junior  mortgagee 
had  the  rents  of  the  property  applied  to  his  mortgage  to  the 
exclusion  of  prior  mortgagees,  it  was  held  that  the  appoint- 
ment of  a  receiver  was  made  for  the  benefit  of  this  lienholder 
only,  and  where  no  other  lienholder  asked  to  have  the  re- 
ceivership extended  to  his  lien,  that  the  rents  and  profits 
should  be  applied  to  the  discharge  of  his  debt  only.'' 

§  810.  Appointment  of  second  receiver. — One  appoint- 
ment of  a  receiver  does  not  exhaust  the  power  of  the  court 
under  the  New  York  practice.*"  An  additional  receiver  will 
not  be  appointed,  however,  unless  it  appears  to  be  necessary 
for  the  protection  of  the  interests  of  those  desiring  it.*^  The 
fact  that  a  receiver  has  already  been  appointed  in  a  previous 
action  will  not  necessarily  interfere  with  the  appointment  of 
another  receiver  in  a  subsequent  suit.  But  where  a  second 
receiver  is  appointed  in  a  subsequent  suit,  the  duties  of  such 
second  receiver  will  be  subordinate  to  that  of  the  first 
one.  When  the  first  receiver  becomes  functus  officio,  the 
second  will  take  the  funds,  or  any  remaining  portion  there- 
of,*^ which  may  be  undisposed  of  by  the  court  in  the  liti- 
gation.** 

T^  Ranney  v.  Peyser,  83  N.  Y.  1.  Howell  v.  Ripley,  10  Paige  Ch.  (N. 

'8  Williamson  v.  Gerlach,  41  Ohio  Y.)   43;   Williamson  v.  Gerlach,  41 

St.  682;   Anderson  v.  Matthews,  8  Ohio  St.  682. 

Wyo.  513,   58  Pac.  898.     See  Put-  8°  See  People  v.  Security  Life  Ins. 

nam  v.  Henderson,  Hull  &  Co.  A9  Co.  79  N.  Y.  267. 

App.  Div.  361,  63  N.  Y.  Supp.  250.  "  Wabash,  St.  L.  &  W.  R.  R.  Co. 

'3  Washington    Ins.    Co.   v.    Flei-  v.  Central  Trust  Co.  22  Fed.  513. 

schauer,  10  Hun  (N.  Y.)  117;  Post  ^^  Bailey  v.  Belmont,  10  Abb.  (N. 

V.  Dorr,  4  Edw.  Ch.   (N.  Y.)  412;  Y.)   Pr.  N.  S.  270,  273. 

'3  O'Mahoney  v.   Belmont,  62   N. 


§    811]  BIECEIVER.  1175 

Where  the  appointment  of  a  receiver  has  been  completed, 
whether  in  the  suit  first  commenced  or  in  a  subsequent  one, 
instead  of  appointing  another  receiver  for  the  same  property, 
the  court  will  usually  extend  the  receivership  of  the  one 
action  over  to  the  other." 

The  appointment  of  a  receiver  is  an  interlocutory  pro- 
ceeding from  which  no  appeal  lies,^^  and  the  consent  of  the 
parties  to  an  appeal,  cannot  confer  jurisdiction  on  the 
appellate  court. ^^  Where  the  complaint  asks  for  the  appoint- 
ment of  a  receiver,  and  the  court  finds  that  a  receiver  should 
be  appointed  but  fails  to  appoint  one,  such  failure  cannot  be 
assigned  as  error  on  an  appeal  by  the  party  opposed  to  the 
appointment,  but  only  by  the  party  asking  for  such  receiver." 

§  811.  No  receiver  where  mortgagee  holds  legal  title. — 
Where  the  legal  title  to  the  mortgaged  premises  is  in  the 
mortgagee,  he  will  not  be  entitled  to  the  appointment  of  a 
receiver,^®  because  he  may  recover  possession  of  the  estate  by 
an  action  for  ejectment,*^  without  the  aid  of  a  court  of 
chancery ;®''  but  if  he  has  only  a  mortgage  of  the  equity  of 
redemption  and  the  prior  mortgagee  is  not  in  possession,  the 
subsequent  mortgagee  may  have  a  receiver  appointed  without 
prejudice  to  the  right  of  the  first  mortgagee  to  take  posses- 

Y.   133,  149;  Bailey  v.  Belmont.  10  Eq.     (1    Stew.)     567;    Beverley    v. 

Abb.  (N.  Y.)  Pr.  N.  S.  270,  273.  Brooke,  4  Gratt.    (Va.)   209;   Wil- 

8*  Osborn  v.  Heyer,  2  Paige  Ch.  liatnson  v.   New  Albany   R.   Co.   1 

(N.   Y.)    342;  Lottimer  v.  Lord,  4  Biss.   C.  C.  201;  Sturch  v.   Young, 

E.  D.  Smith  (N.  Y.)   183,  191.  5    Beav.   557;   Berney  v.   Sewell,    1 

85  Wilson  V.  Davis,  1  Mont.  98.  Jac.  &  W.  647.     But  see  Ackland  v. 

86  Wilson   V.   Davis,   1    Mont.   98.  Grave ner.  31  Beav.  482. 

When   the   order   appointing   a    re-  89  fhe  action  of  ejectment  against 

ceiver    is    in    excess    of    the    juris-  a  mortgagor  has  been  abolished  in 

diction  of  the  court,  it  is  subject  to  New  York;  5  Wait  Pr.  190;  N.  Y. 

review   under  the  California  Code,  Code  Civ.  Proc.  §  1498. 

§  1068.     See  LaSociete  Francaise  v.  ^^  Ackland  v.  Gravener,  31  Beav. 

District   Court,   53    Cal.   495.  484.     See  Sturch  v.  Young,  5  Beav. 

^"^  Emmons  v.  Keller.  39  Ind.  178.  557;  Berney  v.  Sewell,  1  Jac.  &  W. 

88  Williams  v.  Robinson,  16  Conn.  648;  Silver  v.   Bishop  of  Norwich, 

S24;  Mahon  v.  Crothers.  28   K.  J.  3  Swanst.  113  n. 


1176  MORTGAGE    FORECLOSURES.  [§    812 

sion.^^  If,  however,  there  is  a  subsisting  equity,  which,  if  set 
up  at  law,  would  lead  to  the  trial  of  questions  which  might  be 
tried  more  satisfactorily  in  equity,  the  mortgagee,  having  the 
legal  estate,  will  be  entitled  to  a  receiver.^^ 

In  White  v.  Bishop  of  Peterborough,®^  a  third  incumbrancer 
was  in  possession.  The  first  incumbrance  was  a  devise  for 
years,  to  secure  an  annuity,  and  the  second  incumbrance 
was  also  an  annuity  secured  for  a  term.  On  a  bill  jfiled  by 
the  second  incumbrancer,  Lord  Eldon  held  that  he  was  en- 
titled to  a  receiver,  inasmuch  as  he  could  not  succeed  in 
ejectment  on  account  of  a  prior  legal  estate  which  might 
have  been  set  up  against  him.  And  it  has  been  held  that 
the  grantee  of  an  annuity  is  entitled  to  a  receiver  as  against 
judgment  creditors,  who  have  obtained  possession  under  writs 
of  elegit  or  sequestration,  if  there  is  a  legal  estate  prior  to 
the  term  securing  his  annuity,  which  bars  him  from  proceed- 
ing at  law  by  ejectment.®* 

§  812.  No  receiver  where  mortgagee  in  possession. — 

It  is  a  general  rule  that,  as  against  a  prior  mortgagee  in 
possession  of  the  property,  a  receiver  will  not  be  allowed 
in  favor  of  a  subsequent  mortgagee,  as  long  as  any  part  of 
the  debt  remains  unpaid  to  the  prior  mortgagee,®^  because  the 
prior  mortgagee  is  entitled  to  retain  possession  until  his 
claim  is  fully  paid,®^  except  where  he  refuses  to  accept  the  un- 
paid balance,  or  admits  that  he  has  probably  received  the  full 
amount  of  his  claim. ®'^    In  the  early  case  of  Berney  v.  Sewell,®' 

912  Spence  Eq.  Jur.  689.  Pr.  481;  Rapier  v.  Gulf  City  Paper 

^^  Ackland  v.  Gravener,  31   Beav.  Co.  64  Ala.  330;  Callanan  v.  Shaw, 

482.  19  Iowa,  183;  Trenton  Banking  Co. 

93  3  Swanst.  109.  v.  Woodruff,  3  N.  J.  Eq.  (2  H.  W. 

^'^  Silver  v.  Bishop  of  Norwich,  3  Gr.)    210;   Rowe  v.    Wood,  2   Jac. 

Swanst.  113  n.  &  W.  553.    But  see  Harding  v   Gar- 

^^  Patten  v.  The  Accessory  Trans-  bcr,  20  Okl.  11,  93  Pac.  539. 

it  Co.  4  Abb.    (N.  Y.)    Pr.  235.  13  ^^  Callanan  v.  Shaw,  19  Iowa,  183. 

How.    (N.   Y.)    Pr    502;   Quinn  v.  ^1  Berney  v.  Sewell,  1  Jac.  &  W. 

Brittain,  3  Edw.  Ch.   (N.  Y.)   314;  649;  Hiles  v.  Moore,  15  Beav.  180 

Bolles  V.   Duff,  35   How.    (N.   Y.)  98  1  Jac.  &  W.  648. 


§    812]  RECEIVER.  1177 

the  rule  was  stated  thus:  "If  a  man  has  a  legal  mortgage, 
he  cannot  have  a  receiver  appointed;  he  has  nothing  to  do 
but  to  take  possession.  But  if  he  has  only  an  equitable  mort- 
gage, that  is  if  the  prior  mortgagee  is  not  in  the  possession, 
the  other  is  entitled  to  a  receiver  without  prejudice  to  his 
taking  possession;  but  if  he  is  in  possession,  the  subsequent 
mortgagee  cannot  have  a  receiver;  he  must  redeem  from  the 
prior  mortgagee."  ^^ 

The  rule  that  a  receiver  will  not  be  appointed  against  a 
prior  mortgagee  in  possession  as  long  as  anything  remains 
unpaid  on  his  mortgage,  applies  equally  whether  the  priority 
is  original  or  has  been  acquired  subsequently  to  the  execu- 
tion of  the  mortgage  by  assignment ;  ^  but  it  applies  only  so 
long  as  some  part  of  the  debt  remains  unpaid  to  the  mort- 
gagee who  has  a  right  to  retain  the  possession.^ 

This  rule,  that  a  receiver  will  not  be  appointed  against  a 
prior  legal  mortgagee  in  possession,  has  been  said  to  apply 
in  favor  of  persons  in  possession,  entitled  to  a  mortgage  and 
to  prior  charges  on  the  estate,  though  they  may  have  applied 
part  of  the  rents  in  payment  of  the  interest  on  those  charges, 
instead  of  discharging  the  principal  of  the  mortgage,  it  being 
the  proper  course,  as  between  a  tenant  for  life  and  the  owners 
of  the  inheritance,  to  keep  down  such  interest  out  of  the  rents, 
and  not  to  treat  the  surplus  rents,  after  the  payment  of  in- 
terest on  the  unpaid  part  of  the  principal,  as  applicable  to  the 
reduction  of  such  principal.' 

39  See  Mahon  v.  Crothers,  28  N.  ^  Berney  v.  Sewell,  1  Jac.  &  W. 

J.  Eq.   (1  Stew.)  567;  Cortleyeu  v.  648;  Hiles  v.  Moore,  15  Beav.  181; 

Hathaway,  11  N.  J.  Eq.  (3  Stockt.)  Bates  v.  Brothers,   17  Jur.    1174,  2 

39,  64  Am.  Dec.  478 ;  Trenton  Bank-  Sm.  &  G.  509. 

ing   Co.  v.    Woodruff,  3   N.  J.   Eq.  2  Codrington   v.   Parker,    16   Ves. 

(2   H.   W.   Gr.)    210;   Schreiber  v.  469. 

Carey,  48  Wis.  213;  Hiles  V.  Moore,  ^Faulkner    v.    Daniel,    3     Hare, 

15    Beav.    175 ;   Rowe   v.    Wood,  2  204n,  10  L.  J.  Ch.  N.  S.  33. 
Jac.  &  W.  553. 


1178  MORTGAGE    FORECLOSURES.  [§    813 

§  813.  Subsequent  mortgagee  redeeming  from  prior 
mortgagee  in  possession. — Where  a  prior  mortgagee  is 
in  possession,  a  subsequent  mortgagee,  to  gain  control  of  the 
rents,  must  redeem  from  the  first  mortgagee;  and,  in  taking 
the  account,  the  first  mortgagee  will  not  be  allowed  any  sums 
which  he  may  have  paid  to  the  mortgagor  after  notice  of 
subsequent  incumbrances.*  If  the  mortgagee  in  possession 
claims  that  anything  is  due  him,  the  court  will  not  take  the 
possession  away  from  him;  and  so  long  as  anything  remains 
unpaid,  the  court  cannot  substitute  another  security  for  that 
for  which  the  mortgagee  contracted.®  The  only  course  is  to 
pay  him  off  according  to  his  own  statement  of  the  debt,* 
particularly  where  it  appears  that  the  mortgaged  premises 
are  an  inadequate  security  for  the  balance  due.' 

It  is  not  necessary  that  the  mortgagee  in  possession  be  able 
to  state  the  exact  amount  due  on  his  mortgage;  it  will  be 
sufficient  if  he  can  show  that  anything  at  all  is  due.®  The 
incomplete  state  of  his  account  will  furnish  no  valid  excuse 
on  the  part  of  the  mortgagee  in  possession  for  not  making 
a  definite  statement  regarding  the  amount  due  him;  if  he 
keeps  his  accounts  in  such  shape  that  he  cannot  tell,  and  that 
no  one  else  can  ascertain  the  amount  due,  the  court  will  as- 
sume that  nothing  is  due  and  will  appoint  a  receiver.^  Time 
may  be  allowed  the  mortgagee  in  possession,  however,  in 
which  to  prepare  a  statement.^" 

If  the  mortgagee  in  possession  alleges  in  his  answer  that 

*2  Spence  Eq.  Jur.  689.  &  W.  648;  Rowe  v.   Wood,  2  Jac. 

6  Quinn   v.  Brittain,  3   Edw.    Ch.  &  W.  557. 

(N.  Y.)   314;  Berney  v.  Sewell,   1  "^  Bayard  v.  Fellows,  28  Barb.  (N. 

Jac.  &  W.  648,  649 ;  Dalmer  v.  Dash-  Y.)  451. 

wood,  2  Cox   Ch.  382,  383;   Bryan  ^Chambers  v.    Goldwin,   cited   in 

V.  Cormic,  1  Cox  Ch.  422;  Phipps  13  Ves.  378;  Quarrell  v.  Beckford. 

V.    Bishop    of   Bath    and    Wells,   2  13  Ves.  378. 

Dick.    608 ;    Chambers   v.    Goldwin,  ^  Codrington  v.   Parker,   16   Ves. 

cited  13  Ves.  378 ;  Quarrell  v.  Beck-  469 ;  Miles  v.  Moore,  15  Beav.  180. 

ford,  13  Ves.  378.  lo  Codrington  v.  Parker,  16  Ves. 

^Bayard  v.  Fellows,  28  Barb.  (N.  469. 
Y.)    451;  Berney  v.  Sewell.  1   Jac. 


§    814]  RECEIVER.  1179 

some  part  of  the  debt  is  due  him,  the  court  may  determine 
the  truth  of  the  statement  upon  affidavits  against  the  answer." 
The  statement  must  be  a  positive  and  distinct  one;  a  vague 
assertion  or  a  general  declaration  by  the  mortgagee  that  he 
believes  that  when  the  accounts  are  stated,  some  particular 
sums  and  parts  of  other  sums  will  be  found  due,  will  not  be 
sufficient,  unless  it  is  supported  by  a  statement  of  accounts 
which  will  serve  to  test  the  truth  of  such  assertion  or  declara- 
tion." If  the  mortgagee  cannot  state  that  some  definite 
amount  is  due  him,  the  court  will  appoint  a  receiver." 

In  Rowe  v.  Wood,"  a  motion  for  a  receiver  against  a  mort- 
gagee of  mines,  who  had  become  a  partner  by  purchasing 
shares  in  such  mines,  made  upon  the  ground  of  mismanage- 
ment, was  denied,  it  not  being  shown,  and  the  mortgagee 
not  admitting,  that  the  mortgage  was  paid.  It  was  also  held 
in  that  case,  that  the  rights  and  duties  of  a  person  in  such  a 
situation  were  not  to  be  governed  solely  by  principles  ap- 
plicable to  a  party  who  stands  in  the  position  of  a  mortgagee 
or  partner;  and  that  if  a  mortgagee  can  in  any  case  be  de- 
prived of  his  possession  on  the  ground  of  mismanagement,  it 
must  be  mismanagement  of  a  clear  and  specific  nature. 

§  814.  Other  cases  for  receiver  where  mortgagee  in 
possession. — A  mortgagee  who  has  been  placed  in  posses- 
sion by  the  mortgagor,  by  virtue  either  of  a  clause  in  the 
mortgage  or  of  a  subsequent  agreement  or  consent,  which 
may  be  by  parol,  is  entitled  to  retain  possession  and  to  col- 
lect the  rents  and  profits  as  against  a  purchaser  at  a  sale 
under  an  execution  issued  on  a  judgment,  the  lien  of  which 
did  not  attach  until  after  the  mortgagee's  possession  had  com- 
menced." 

"  Rowe  V.    Wood,  2  Jac.   &  W.  13  Ves.  378 ;  Rowe  v.  Wood,  2  Jac. 

558.  &  W.  558. 

12  Hiles  V.  Moore,  15  Beav.  181.  i*  2  Jac.  &  W.  553. 

"^^  Chambers  v.  Goldwin,  cited  in  ^^  Edwards  v.    JVray,  11   Biss.  C. 

13  Ves.  378;  Quarrell  v.  Beckford.  C.  251.   12  Fed.  42. 


1180  MORTGAGE    FORECLOSURES.  [§    815 

But  possession  of  the  premises  obtained  by  a  mortgagee, 
through  arrangements  with  a  tenant  of  the  mortgagor,  whose 
lease  has  expired,  without  the  consent  of  such  mortgagor, 
is  not  a  lawful  possession  and  will  not  be  a  bar  to  the  ap- 
pointment of  a  receiver.^®  And  the  rule  that  a  receiver  will 
not  be  appointed  against  a  mortgagee  holding  the  legal  title, 
who  is  in  the  actual  possession  of  the  mortgaged  property, 
does  not  apply  where  the  party  in  possession  holds  the  prop- 
erty under  an  execution  issued  upon  a  judgment. ■^''^ 

In  order  to  deprive  an  equitable  mortgagee  of  the  right  to 
a  receiver,  the  possession  of  the  party  holding  the  property 
must  be  such  as  invests  him  with  a  right  to  receive  the  rents 
and  profits.  A  mere  possession  as  a  tenant  is  not  sufficient, 
and  an  incumbrancer  who  is  in  possession,  not  as  an  incum- 
brancer, but  as  a  tenant,  cannot  set  up  his  possession  as  such 
tenant  against  the  appointment  of  a  receiver." 

In  a  case  where  a  second  mortgagee,  who  had  sold  a  part 
of  his  mortgage  to  a  tenant  in  possession  of  the  premises, 
applied  for  a  receiver,  and  the  tenant  in  possession  objected, 
on  the  ground  that  the  rent  which  he  was  to  pay  was  just 
equal  to  the  interest  he  was  entitled  to  receive  on  his  share 
of  the  money  due  on  the  mortgage,  and  that  it  would,  there- 
fore, merely  increase  his  expenses  by  paying  into  court  as 
rent  what  he  must  receive  back  as  interest,  the  court  held  that 
the  defendant  could  not  unite  his  two  characters  of  mortgagee 
and  tenant,  and  that  his  possession  as  tenant  could  not  be  set 
up  against  the  other  mortgagee.''^ 

§  815.  When  a  receiver  will  be  appointed  against  a 
mortgagee  in  possession. — As  has  been  seen,  a  receiver 
will  not  be  appointed  as  a  rule  against  a  mortgagee  in  pos- 
session so  long  as  anything  remains  due  to  him ;  yet,  where 
it   appears   that  he   is   irresponsible,    or   that   the   rents   and 

16  Russell   V.    Ely,   67   U.    S.    (2  !»  Kerr  on  Rec.  44. 

Black)  575,  17  L.  ed.  258.  ^^  Archdeacon  v.  Bowes,  3  Anst. 

"Kerr  on  Rec.  118.  752. 


§    816]  RECEIVER.  1181 

profits  will  be  lost,  or  are  in  danger  of  being  lost,  or  that  he 
is  committing  waste  upon  or  a  material  injury  to  the  prem- 
ises, an  exception  will  be  made  and  a  receiver  will  be  ap- 
pointed.^" A  receiver  will  also  be  appointed  in  all  instances 
where  a  prima  facie  case  of  fraud  is  shown  to  the  satisfaction 
of  the  court,'^^  or  where  gross  mismanagement  of  the  estate 
is  made  to  appear;  but  to  warrant  such  an  interference,  the 
mismanagement  must  be  of  a  clear  and  specific  nature. ^^ 

Where  liens  upon  a  bankrupt's  estate  are  before  a  court 
for  adjustment,  a  receiver  will  be  appointed  on  the  applica- 
tion of  his  assignee,  although  the  bankrupt  may  have  relin- 
linquished  possession  to  some  of  the  prior  incumbrancers.^^ 

§  816.  Receiver  where  first  mortgagee  out  of  posses- 
sion.— If  it  appears  from  the  bill  that  there  is  a  prior 
mortgagee  who  is  not  in  possession  of  the  premises,  it  has 
been  held  that  the  court  may,  at  the  instance  of  subsequent 
incumbrancers,  appoint  a  receiver  in  the  absence  of  the  prior 
mortgagee,  even  where  the  mortgagor  is  out  of  the  jurisdic- 
tion of  the  court ;  but  such  an  appointment  will,  of  course,  be 
made  without  prejudice  to  the  right  of  the  first  mortgagee 
to  take  possession  of  the  premises  at  any  time  he  may  desire.^* 

^^Bolles   V.    Duff,   35    How.    (N.  Ch.  378-383;   Bryan  v.   Cormick,   1 

Y.)  Pr.  481;  Williams  v.  Robinson,  Cox  Ch.  423;  Phipps  v.  Bishop  of 

16  Conn.  517;  Beverley  v.  Brooke,  Bath,  2  Dick.  608;  Berney  v.  Sewell, 

4  Gratt.  (Va.)  209;  Meaden  v.  Sea-  1   Jac.   &   W.   647-649;    Tanfield   v. 

ley,    6    Hare,    620;    Codrington    v.  Irvine,     2     Russ.     151.       But     see 

Park,   16  Ves.  469;   Lloyd  v.   Pas-  Holmes     v.     Bell,     2     Beav.     298; 

singham,    16   Ves.    59;    Hugonin   v.  Browne  v.  Blounte,  2  Russ.   &  M. 

Sasely,  13  Ves.  105.  83 ;    Anderson    v.    Slather,   2    Coll. 

^^  Corcoran  v.  Doll,  35  Cal.  476;  209;    Rhodes    v.    Mostyn,    17    Jur. 

Kipp  V.  Hanna,  2  Bland  Ch.  (Md.)  1007;  Coope  v.  Creswell,  12  W.  R. 

26 ;  Hugonin  v.  Basely,  13  Ves.  105 ;  299. 

Lloyd  V.  Passingham,  16  Ves.  59.  In  Phipps  v.  Bishop  of  Bath  and 

^^Rowe  V.   Wood,  2  Jac.   &  VV.  Wells,  2  Dick  608,  Lord  Thurlow 

553.  refused  to  appoint  a  receiver  at  the 

23  McLean  v.   Lafayette   Bank,  3  instance  of  a  second  mortgagee,  the 

McL.  C.  C.  503,  2  West.  L.  J.  441.  first  one   not  being   in  possession; 

^^  D aimer    v.    Dashwood,   2    Cox  but  in  Bryan  v.  Cormick,  1  Cox  Ch. 


1182  MORTGAGE    FORECLOSURES.  [§    817 

If  there  are  prior  outstanding  mortgages,  but  the  mort- 
gagees are  not  in  possession,  or  refuse  to  take  possession,  the 
court  may  appoint  a  receiver  of  the  mortgaged  premises  at 
the  instance  of  subsequent  mortgagees  or  judgment  creditors, 
without  prejudice  to  the  right  of  the  prior  mortgagees  to 
take  possession.^^  But  a  court  will  not  allow  a  prior  legal 
incumbrancer  to  object  to  the  appointment  of  a  receiver  ex- 
cept by  the  assertion  of  his  legal  rights  and  by  taking  posses- 
sion of  the  premises  himself.^^ 

§  817.  Receiver  appointed  upon  the  application  of 
junior  mortgagee. — The  appointment  of  a  receiver  may  be 
made  at  the  suit  of  a  junior  mortgagee,  or  other  legal  in- 
cumbrancer, for  the  purpose  of  keeping  down  the  interest, 
even  though  the  applicant  may  be  unable,  at  the  time,  to 
enforce  the  usual  mortgagee's  remedies,  as  where  he  has 
covenanted  not  to  call  in  the  mortgage  debt  during  a  certain 
time.'''  And  the  court  may,  in  a  suit  by  a  junior  mortgagee, 
appoint  a  receiver,  although  the  first  mortgagee  may,  by  his 

422,  he  came  to  the  conclusion  that  mortgagee,    the    mortgagor    living, 

a  subsequent  mortgagee  is  entitled  cannot  have  a  receiver  without  the 

to  have  a   receiver  when  the  first  consent  of  the  first  mortgagee,  be- 

mortgagee  is  not  in  possession.     A  cause  the  court  cannot  prevent  the 

similar  order  was  made  in  Dalnier  first   mortgagee    from    bringing   an 

v.  Dashwood,  2   Cox  Ch.  378.     In  ejectment    against    the    receiver    as 

Langton  v.  Langton,  7  De  G.  M.  &  soon  as  he  is  appointed."     But  the 

G.  30,  a  receiver  was  appointed  at  later  cases,  given  above,  have  estab- 

the  suit  of  a  junior  incumbrancer,  lished  the  rule  as  stated  in  the  text, 

the  first  legal  incumbrancer  not  be-  See  also  Cortleyeu  v.  Hathaway,  11 

ing     entitled     to    take     possession,  N.  J.  Eq.  (3  Stockt.)  39,  42,  64  Am. 

because    he   was,   by   the  terms   of  Dec.    478;    State    of    Maryland    v. 

his    security,    obliged   before   doing  North  Cent.  R.  R.  Co.  18  Md.  193. 

so,    to    give    three    month's    notice  ^5  Rhodes  v.  Mostyn,  17  Jur.  1007 ; 

after  default  made  in  the  payment  Bryan  v.  Cormick,  1  Cox  Ch.  422. 

of    the    mortgage    money.      In    the  ^6  Wiswall  v.  Sampson,  55  U.  S. 

early  case  of  Phipps  V.  Bishop   of  (14  How.)  65,  14  L.  ed.  322;  Silver 

Bath  and  Wells,  2  Dick,  608,  where  v.    Bishop    of   Norwich,   3    Swanst. 

the  first  mortgagee  was  not  in  pos-  112n. 

session,    a     receiver     was     refused,  27  Burrows   v.    Malloy,   2   Jac.    & 

Lord   Thurlow,  saying:  "A  second  LaT.  521. 


§    818]  RECEIVER.  1183 

mortgage,  have  the  power  to  appoint  one.^^  But  the  appoint- 
ment will  always  be  without  prejudice  to  the  rights  of  every 
prior  mortgagee,  and  the  receiver  will  be  directed  by  the  order 
appointing  him  to  keep  down  the  interest  upon  all  prior  in- 
cumbrances.^ 

If  the  interest  is  in  arrears,  such  arrearage  will  be  a  suffi- 
cient cause  for  the  appointment  of  a  receiver  at  the  suit  of  a 
junior  mortgagee  incumbrancer.^"  But  where,  as  between  two 
equitable  incumbrancers,  the  one  later  in  date  has  acquired 
the  legal  possession  of  the  premises,  the  court  will  not  appoint 
a  receiver  at  the  instance  of  the  one  who  was  prior  in  date.^^ 

It  is  said  to  be  a  well  established  rule  that  a  mortgagee 
obtains  a  specific  lien  upon  rents  and  profits  by  diligently 
securing  the  appointment  of  a  receiver,  and  a  second  or  other 
subsequent  mortgagee  may  thus  secure  an  advantage  over 
the  first  mortgagee  as  to  the  rents  collected,^^  even  though 
the  first  mortgagee  may  not  receive  from  the  foreclosure  sale  a 
sufficient  amount  to  discharge  his  mortgage  debt.  But  this 
rule  is  said  to  apply  only  to  those  cases  where  the  first  mort- 
gagee is  not  a  party  to  the  suit.^^ 

§  818.  Receiver  when  junior  mortgagee  in  posses- 
sion.— If  a  subsequent  incumbrancer  is  in  possession  of 

^^Bord   V.    Tollemache,    1    N.    R.  257;  Kroehle  v.  Ravitch,   148  App. 

177.  Div.  54,  132  N.  Y.  Supp.  1056.    See 

^^Cortleyeu  v.  Hathaivay.   11   N.  Anderson  v.  Matthews,  8  Wyo.  513. 

J.  Eq.  (3  Stockt.)  42,  64  Am.  Dec.  58  Pac.  898;  IVarnerv.  Gou-verneur, 

478.  1    Barb.    (N.   Y.)    Z6;    Washington 

30  White  V.  Bishop  of  Petersbor-  Life  Ins.  Co.  v.  Fleischauer,  10  Hun 

ough,  3  Swanst.  109;  Tanficld  v.  /;--  (N.  Y.)    117;  Astor  v.   Turner,  11 

vine,  2  Russ.  151 ;  Wilson  v.  Wilson,  Paige  Ch.  (N.  Y.)  436,  43  Am.  Dec. 

2  Keen,  249;  Hopkins  v.  Worcester  766;  Howell  v.  Ripley,  10  Paige  Ch. 

and  Birmingham  Canal  Co.  L.  R.  6  (N.  Y.)  43;  Thomas  v.  Brigstocke. 

Eq.  437.  4  Russ.  64.    See  also  Madison  Trust 

^^  Bates  V.  Brothers.  17  Jur.  1174.  Co.  v.  Axt,  146  App.  Div.  121.  130 

^^Post  V.  Dorr.  4  Edw.  Ch.   (N.  N.  Y.  Supp.  371. 
Y.)    412;    Abrahams  v.    Berkowitz,  ^^  Howell  v.  Ripley,  10  Paige  Ch. 

146  App.  Div.  563.  131  N.  Y.  Supp  (N.  Y.)  43;  Miltenbergcr  v.  Logans- 


1184  MORTGAGE    FORECLOSURES.  [§    819 

property  and  a  prior  legal  incumbrancer  cannot  recover  pos- 
session by  an  ejectment,  a  receiver  may  be  appointed.^* 
Where  a  second  mortgagee  forecloses  and  buys  in  the  prem- 
ises for  less  than  the  amount  of  his  mortgage  debt,  and  takes 
possession  as  purchaser,  and  the  premises  are  doubtful  se- 
curity for  the  first  mortgage,  the  first  mortgagee  may,  in 
an  action  to  foreclose  his  mortgage,  have  a  receiver  appointed, 
who  will  be  required  to  account  to  such  purchaser  for  any 
balance  that  may  remain  after  satisfying  the  first  mortgage.^' 
Where,  in  an  action  for  foreclosure,  a  junior  mortgagee 
was  appointed  receiver  with  power  to  keep  the  buildings 
insured  and  in  repair  and  "to  pay  ground  rent  and  taxes," 
and  subsequently  a  prior  mortgagee  foreclosed  and  bought 
in  the  premises  for  less  than  his  claim,  the  receiver,  having 
paid  the  ground  rent  to  the  date  of  the  sale,  was  held  to  be  en- 
titled to  appropriate  the  balance  in  his  hands  to  the  discharge 
of  his  mortgage,  and  could  not  be  required  to  pay  the  taxes 
from  the  fund.^®  A  third  mortgagee,  who  advances  money  to 
buy  up  a  first  incumbrance,  cannot  retain  the  property  as 
against  a  second  mortgagee,  after  the  first  mortgage  has  been 
paid  off,  if  he  had  notice  of  the  existence  of  such  second 
mortgage.^' 

§  819.  General  practice  in  appointing  receiver. — W^here 
the  plaintiff  avers  that  the  security  for  the  mortgage  debt  is 
insufficient,  and  the  mortgagor  or  the  party  personally  liable 
for  the  payment  of  the  debt  is  insolvent,  the  mortgagee  will 
be  entitled  to  apply  for  a  receiver  of  the  rents  and  profits  of 
the  mortgaged  premises  at  any  time  during  the  progress  of 

port  R.   Co.    106  U.   S.    (16   Otto)  ^^  Ranney  v.  Peyser,  83  N.  Y.  1, 

286,  27  L.  ed.  117,  1  Sup.  Ct.  Rep.       reversing  20  Hun  (N.  Y.)   11. 
140;  High  on  Rec.  §  688.  ^^  Hiles  v.  Moore,  IS  Beav.   175, 

3^  Silver  v.  Bishop  of  Norwich,  3       181. 
Svvanst.  116n. 

35  J\rg2v    York    Life    Ins.    Co.    v. 
Glass,  50  How.  (N.  Y.)  Pr.  88. 


§    820]  RECEIVER.  1185 

the  cause,^'  and  will,  even  before  the  hearing,^^  be  entitled  to 
a  receiver  as  a  matter  of  right,  unless  the  party  in  possession, 
or  the  person  liable  for  the  payment  of  the  deficiency,  gives 
a  sufficient  undertaking  to  account  for  the  rents  and  profits 
in  case  of  a  deficiency.*"  A  receiver  may  be  appointed  even 
after  a  voluntary  assignment  by  a  mortgagor  for  the  benefit 
of  his  creditors.*^ 

While  a  receiver  may  be  appointed,  either  upon  the  appli- 
cation of  the  plaintiff,  or  upon  the  motion  of  the  court  in  a 
case  justify^ing  it,  yet  one  will  not  be  appointed  on  the 
application  of  a  mere  stranger  having  no  connection  with  or 
interest  in  the  subject  matter  of  the  litigation.*^ 

§  820.  Time  of  appointing  receiver. — A  court  of  chan- 
cery has  no  power  to  appoint  a  receiver  prior  to  the  filing 
of  a  bill  and  the  beginning  of  an  action,*^  nor  without  notice 
to  the  parties  interested  in  the  property  to  be  delivered  into 
the  receiver's  hands ;  **  an  order  to  show  cause  why  a  receiver 
should  not  be  appointed,  served  before  the  action  is  com- 
menced, is  irregular.*^  It  has  long  been  held  that  a  receiver 
should  not  be  applied  for  prior  to  the  service  of  the  sum- 
mons,*® unless,  perhaps,  where  the  defendant  designedly  keeps 
without  the  jurisdiction  of  the  court,  or  in  hiding,  to  avoid 

^^Lofsky  V.  Maujer,  3  Sandf.  Ch.  10  Paige  Ch.   (N.  Y.)  43;  Sea  Ins. 

(N.  Y.)  69;  Hardy  v.  McClellan,  53  Co.  v.  Stebbins,  8  Paige  Ch.  (N.  Y.) 

Miss.    507;    Whitehead   v.    Wooten,  565;  Main  v.  Ginthert,  92  Ind.  180; 

43    Miss.    523;    Brown    v.    Chase,  Myers  v.  Estell,  48  Miss.  372. 

Walk.  Ch.  (Mich.)  43.  «  Upham  v.  Lewis,   1  Law  Bull. 

39  Brinkman  v.  Ritzinger,  82  Ind.  86. 

364.    See  Frelinghuysen  v.  Colden,  4  ^2  O'Mahoney  v.  Belmont,  62  N. 

Paige  Ch.    (N.  Y.)   204;  CasUn  v.  Y.    133.      See   Attorney-General   v. 

State,  44  Ind.  151.  Day,  2  Madd.  246. 

*°  Syracuse  Bank  v.   Tollman,  31  ^3  Crowder  v.  Moone,  52  Ala.  220. 

Barb.    (N.    Y.)    201.     See    Warner  ^  Jones  w  Schall,  AS  Uxoh.  2,79. 

V.  Gouverneur,  1  Barb.  (N.  Y.)  36;  ^^  Kattenstroth  v.  Astor  Bank,  2 

Shotzvell  V.  Smith,  3  Edw.  Ch.  (N.  Duer  (N.  Y.)  632. 

Y.)  588;  Astor  v.  Turner,  11  Paige  ^^  Stratton  v.  Davidson,  1  Russ.  & 

Ch.  (N.  Y.)  436;  Howell  v.  Ripley.  Myl.  484 
Mortg.  Vol.  II.— 75. 


1186  MORTGAGE    FORECLOSURES.  [§    821 

service  of  the  process,*'  because  a  court  has  no  jiiriscliction 
to  deprive  a  party,  who  is  not  present  to  defend  himself,  of 
the  possession  of  his  estate.*'  A  receiver  should  not  be  ap- 
pointed before  final  judgment,  merely  because  of  a  concur- 
rent demand  by  two  or  more  parties  to  the  action.*' 

§  821.  Appointment  of  receiver  before  answer. — The 
general  rule  is,  that  a  receiver  will  not  be  appointed  before 
the  defendant  answers,  especially  if  one  is  not  asked  for  in  the 
complaint,  unless  it  clearly  appears  that  the  property  is  in 
danger  of  loss  or  injury  by  reason  of  the  insolvency  of  the 
party  having  possession  of  it,  or  from  other  causes. ^°  And 
where  a  receiver  is  appointed  before  the  answer  is  served,  he 
may  afterwards  be  discharged  on  the  defendant's  motion, 
if  the  complaint  and  answer  taken  together  show  that  a 
receiver  should  not  have  been  appointed.^^ 

It  was  formerly  held  not  to  be  proper  to  move  for  a 
receiver  upon  the  pleadings  and  affidavits  in  the  action  be- 
fore the  hearing  on  the  trial. ^*  The  present  doctrine,  how- 
ever, is  that  after  an  action  for  foreclosure  has  been  com- 
menced, the  plaintiff  may,  if  the  security  is  in  jeopardy, 
sequestrate  the  rents  or  emblements  or  both  through  the  aid 
of  a  receiver,  at  any  time  during  the  progress  of  the  action; 
but  that  the  receiver  is  not  entitled  to  recover  rents  collected 
nor  the  value  of  emblements  enjoyed  prior  to  the  date  of  his 
appointment.*' 

To  authorize  the  appointment  of  a  receiver  before  the 
hearing,  the  complaint  must  contain  a  prayer  for  such  appoint- 

*' QMiMn    V.    Gunn,     1     Hog.    75;  Abb.  (N.  Y.)  Pr.  7;  West  v.  Swan, 

Malcolm  v.  Montgomery,  2  Molloy,  3  Edw.  Ch.  (N.  Y.)  420. 

500;  Maguirc  v.  Allen,  1  Ball  &  B.  ^'^  Phoenix  Mitt.  Life  Ins.  v.  Grant, 

75;    Coward  v.   Chadwick,  2   Russ.  3  McAr.  D.  C.  220. 

150  n.    See  1  VanSant.  Eq.  Pr.  402.  ^2  thyd  v.  Passingham,  3  Meriv. 

*8  Tanfield  v.  Irvine,  2  Russ.  151.  697. 

^^  Duscnbury    v.    Dusenbury,     11  ^^  Hamilton    v.    Austin,    36    Hun 

Daly  (N.  Y.)  112.  (N.  Y.)    138. 

^^  People   V.    Mayor   of   N.    Y.   8 


§    822]  RECEIVER.  1187 

ment.®*  A  receiver  will  be  appointed  after  a  hearing  or 
after  a  rehearing,  even  though  such  appointment  may  have 
been  once  refused,  upon  showing  a  new  state  of  facts  such 
as  to  justify  the  appointment." 

§  822.  Appointment  of  receiver  after  granting  decree. — 
After  a  decree  of  foreclosure  has  been  granted,  the  court 
may  appoint  a  receiver,  although  not  asked  for  in  the  com- 
plaint,^^ where  such  appointment  is  necessary  to  protect  the 
interests  of  the  mortgagee;  "  the  fact  that  the  complaint  does 
not  state  facts  authorizing  the  appointment  of  a  receiver,  con- 
stitutes no  objection  to  an  apphcation  well  supported  on  the 
merits.®^ 

If  a  trustee,  appointed  by  a  final  decree,  refuses  the  trust 
a  receiver  may  be  appointed  to  protect  the  interests  of  all 
the  parties  interested  in  the  state.*®  And  where  a  receiver  has 
been  properly  appointed  in  a  suit  for  the  foreclosure  of  a 
mortgage,  it  will  be  no  error  to  continue  the  receivership  after 
the  final  decree  of  sale.®" 

Although  a  mortgagor  may  be  entitled  to  hold  the  legal 
title  to  the  premises  until  the  foreclosure  sale,  yet  in  a  proper 
case,  and  when  necessary  to  protect  the  mortgagee's  interests, 
equity  will  appoint  a  receiver;  and  his  appointment  may  be 
made  by  an  order  in  the  foreclosure  even  after  judgment." 
But  an  order  appointing  a  receiver  of  rents  and  profits  after 

5*  Cook    V.    Gwyn,    3    Atk.    689 ;  case,  when  necessary  to  protect  the 

Meredith  v.  Wyse,  1  Molloy,  2.  mortgagee's    interests,    equity    will 

^^Attorney-General  v.  Mayor  of  appoint    a    receiver;    this    may    be 

Galway,  1  Molloy,  95.  done  by  an  order  in  the  foreclosure 

^^Cook    V.    Gwyn,    3    Atk.    689;  suit  after  judgment;  and  the   fact 

Meredith  v.  Wyse.  1  ^lolloy,  2.  that   the   complaint    does   not    state 

^"^  Haas  V.   Chicago  Building  Soc.  facts   authorizing   the   appointment, 

89  111.  498;  Schreiber  v.  Carey,  48  is  no  objection  in  such  a  case." 

Wis.   208.     In   Schreiber  v.    Carey,  58  Schreiber  v.  Carey.  48  Wis.  208. 

supra,  the  court  say:  "Although,  by  59  wuson  v.  Russ.  17  Fla.  691. 

the  laws  of  this  state,  the  mortgagor  6"  Buchanan  v.   Berkshire  L.  Ins. 

of  lands  holds  the  legal  title  until  Co.  96  Ind.  510. 

the  foreclosure  sale,  yet  in  a  proper  ^^  Schreiber  v.  Carey.  48  Wis.  208. 


1188  MORTGAGE    FORECLOSURES.  [§    823 

a  final  decree  of  foreclosure  and  sale,  should  not  be  granted 
without  notice;  yet  if  a  party  voluntarily  appears  and  resists 
the  application  for  a  receiver,  notice  thereof  will  be  deemed 
to  have  been  waived. ^^ 

§  823.  Appointment  of  receiver  after  sale. — Inasmuch 
as  the  necessity  for  the  appropriation  of  the  rents  and  profits 
to  the  payment  of  the  mortgage  debt  frequently  does  not 
appear  until  after  the  sale,  a  receiver  to  collect  them  may  be 
appointed  by  the  court  after  the  sale  upon  a  proper  showing 
of  the  facts  and  circumstances,^^  or  where  it  clearly  appears 
that  the  rights  of  the  purchaser  have  been  impaired  or  are 
likely  to  be  impaired  by  the  possession  of  the  mortgagor. 
The  reason  for  this  would  seem  to  be  that  the  security  is  not 
exhausted  by  the  sale,  for  there  is  also  a  fund  included  in  it 
which  is  secondarily  liable, — the  rents  and  profits.  The  power 
of  appointing  a  receiver  after  a  sale,  however,  should  be 
exercised  only  in  extreme  cases  and  to  prevent  gross  wrong 
and  injustice.®* 

It  has  been  said  that  where  a  mortgagee  completes  his 
foreclosure  without  sequestrating  the  rents  and  profits,  he 
cannot  afterwards,  on  finding  the  property  insufficient  se- 
curity, have  the  rents  and  profits  applied  to  the  payment  of 
his  debt,  because  his  right  to  intercept  such  rents  and  profits 
ceases  with  the  completion  of  the  foreclosure ;  ®^  but  the  better 
doctrine  is  thought  to  be  that  a  receiver  may  be  appointed 

62  Haas  V.  Chicago  Building  Soc.  in   and   re-enacted   by  2  Ind.   Rev. 

89  111.  498.  Stat.  144,  §  199,  chap.  6. 

^^  Smith  V.   Tiffany,  13  Hun   (N.  ^'^Haas  v.  Chicago  Building  Soc. 

Y.)  671;  Astor  v.  Turner,  11  Paige  89  111.  498.     See  Astor  v.    Turner, 

Ch.  (N.  Y.)  436,  43  Am.  Dec.  766;  11  Paige  Ch.   (N.  Y.)  436,  43  Am. 

Haas  V.   Chicago  Building  Soc.  89  Dec.    766;    Smith    v.     Tiffany,     13 

III.    498;    Connelly   v.    Dickson,    76  Hun  (N.  Y.)  671;  Adair  v.  Wright, 

Ind.  440;  Adair  v.  Wright,  16  Iowa.  16  Iowa,  385;   Schrciber  v.   Carey, 

385;    Schreiber   v.    Carey,   48   Wis.  48  Wis.  208;  Thomas  v.  Davies,  11 

208;  Thomas  v.  Davies,  11  Beav.  29.  Beav.  29. 

In  Indiana  the  old  equity  rule  gov-  ^^  Foster    v.    Rhodes,    10    Bankr. 

erning  this    subject   was    embodied  Reg.  523. 


§    825]  RECEIVER.  1189 

after  the  granting  of  a  decree  or  even  after  a  sale,  where- 
such  appointment  is  necessary  to  protect  the  interests  and 
to  preserve  the  rights  of  the  parties  to  the  action. ^^ 

§  824.  Interference    with    receiver's    possession. — The 

possession  of  a  receiver  appointed  in  a  mortgage  foreclosure 
is  not  to  be  disturbed  without  leave  of  the  court  making  the 
appointment,^'  and  all  claims  adverse  to  such  receiver  are 
to  be  determined  by  the  court  appointing  him.^^  But,  al- 
though the  courts  will  prevent  any  disturbance  of  a  receiver 
in  possession  under  an  order  of  sequestration,  yet  they  gener- 
ally refuse  to  interfere  as  against  the  legal  title.*' 

The  court,  when  appealed  to,  will  examine  the  title  and 
discharge  the  receiver,  or  leave  the  party  claiming  the  posses- 
sion under  a  superior  legal  title,  to  enforce  his  rights  by  an 
action  at  law.'° 

§  825.  Remedy  of  parties  claiming  title  paramount  to 
receiver. — Where  a  receiver  has  been  appointed  in  a  mort- 
gage foreclosure  and  a  party  claims  a  paramount  title  to  the 
estate,  the  remedy  of  the  receiver  is  to  apply  to  the  court  to- 
direct  the  claimant  to  exhibit  interrogatories  in  order  that 

^^  Russell  V.  Bruce,  159  Ind.  553,  Y.  133,  149.    See  Milwaukee  &  SL 

64  N.  E.  602.    See  White  v.  Mackey,  P.  R.  R.  Co.  v.  Milwaukee  &  M. 

85  111.  App.  282 ;  Walker  v.  Kersten,  R.  R.  Co.  20  Wis.  165,  88  Am.  Dec. 

115  111.  App.  130.    See  also  National  735;  Peak  v.  Phipps,  55  U.  S.   (14 

Fire  Ins.  Co.  of  Hartford  v.  Broad-  How.)  368,  374,  14  L.  ed.  459. 
bciit,  77  Minn.  175,  79  N.  W.  676.  ^^  Foster  v.    Townshend,   2   Abb.. 

^"^  Foster  v.  Townshend,  2  Abb.  (N.  Y.)  N.  C.  29,  Z7.  See  Tyson 
(N.  Y.)  N.  C.  29,  36.  See  Sea  Ins.  v.  Fairclough,  2  Sim.  &  S.  142,, 
Co.  V.  Stebbins,  8  Paige  Ch.  (N.  Jeremy  Eq.  Jur.  252. 
Y.)  S6S;  Angel  \.  Smith,  9  Yts.  2,2,6,  ''^Foster  v.  Townshend,  2  Abb. 
338;  Brooks  v.  Greathed,  1  Jac.  &  (N.  Y.)  N.  C.  29,  2,7.  See  Angel 
W.  176,  178;  Pelham  v.  Dutchess  of  v.  Smith,  9  Ves.  336,  338;  Di.von  v. 
Newcastle,  3  Swanst.  289,  293  n,  1  Smith,  1  Swanst.  457;  Attorney- 
Story  Eq.  Jur.  (11th  ed.)  §  33a;  General  v.  Coventry,  1  P.  Wm.  306; 
Daniels  Ch.  Pr.  1579.  Empringham  v.  Short,  3  Hare,  461 

68  O'Mahoney  v.  Belmont,  62  N.  Gilb.   For  Roman.  81. 


1190 


MORTGAGE    FORECLOSURES. 


[§    826 


he  may  be  examined  pro  inferesse  siw,''^  as  to  his  title  to  the 
estate.'^ 

Anyone  interfering  with  a  receiver  in  possession  without 
first  obtaining  leave  of  the  court  which  appointed  him,  must 
either  come  into  court  and  be  examined  pro  interesse  suo^ 
or  apply  to  the  court  for  leave  to  enforce  his  legal  rights  by 
bringing  an  action  in  ejectment ;  '''^  in  either  case  the  appli- 
cation may  be  made  by  motion/*  or  on  petition;  a  petition 
is  probably  the  most  convenient  practice/^ 

§  826.  Appeal — Continuance  of  receivership. — In  Mc- 

Mahon  v.  Allen,"  an  order  directing  the  continuance  of  a 
receivership  during  the  pendency  of  an  appeal,  which  was  to 
be  taken  from  the  final  decree,   was   held  to  continue  the 


"^^  Though  it  was  formerly  ques- 
tioned [see  Kaye  v.  Cunningham,  5 
Madd.  406],  it  now  appears  to  be 
■settled,  that  the  party  for  whose 
benefit  the  receivership  was  had, 
may  require  the  party  claiming  an 
•adverse  right  or  title,  to  come  in 
and  show  cause  why  he  should  not 
ht  examined  pro  interesse  suo. 
Foster  v.  Townshend,  2  Abb.  (N. 
Y.)  N.  C.  29,  Z7.  See  Johnes  v. 
Claughton,  Jac.  573;  Brooks  v. 
Greathed,  1  Jac.  &  W.  573;  Ham- 
lyn  V.  Lee,  1  Dick.  94. 

'2  Wiswall  V.  Sampson,  55  U.  S. 
(14  How.)  52,  65,  14  L.  ed.  322,  3 
Dan.  Ch.  Pr.  1984. 

'3  Wiswall  V.  Sampson,  55  U.  S. 
(14  How.)  52.  65,  14  L.  ed.  322. 
Regarding  the  practice  in  such 
cases,  see  Hamlyn  v.  Lee,  1  Dick. 
94;  Gomme  v.  West,  2  Dick.  472; 
Hunt  V.  Priest,  2  Die.  540;  Anon. 
6  Ves.  287. 

'*  Green  v.  Winter,  1  Johns.  Ch. 
(N.  Y.)  60,  7  Am.  Dec.  475;  Bryan 
V.  Connie k,  1  Cox  Ch.  422;  Angel  v. 


Smith,  9  Ves.  335,  2  Spence  Eq.  Jur. 
647. 

■^5  Brooks  V.  Greathed,  1  Jac.  & 
W.  179,  note;  Dickinson  v.  Smith, 
4  Madd.  177;  Walker  v.  Bell,  2 
Madd.  21 ;  Dixon  v.  Smith,  1 
Swanst.  457. 

"^^  Brooks  V.  Greathed,  1  Jac.  & 
W.  178,  2  Spence  Eq.  Jur.  699. 
Where  it  is  made  to  appear  to  the 
satisfaction  of  the  court  that  the 
claimant  has  a  superior  right  or 
title  to  the  sequestration,  the  re- 
ceiver will  be  discharged  as  to  him. 
Foster  v.  Townshend,  2  Abb.  (N. 
Y.)  N.  C.  29,  36;  Attorney-General 
V.  Coventry,  1  P.  Wm.  306,  309, 
note ;  Wharam  v.  Broughton,  1  Ves. 
Sr.  181,  3  Dan.  Ch.  Pr.  1269,  1270, 
1271,  and  such  orders  will  be  made 
as  the  rights  of  all  parties  in  in- 
terest may  require.  Field  v.  Jones, 
11  Ga.  413;  Angel  v.  Smith,  9  Ves. 
335.  338,  2  Story  Eq.  Jur.  (Uth  ed.) 
§§  833,  891. 

"  14  Abb.  (N.  Y.)  Pr.  220. 


§    827]  RECEIVER.  1191 

receiver's  authority  not  only  during  the  appeal  to  the  general 
term,  but  also  during  an  appeal  to  the  court  of  appeals. 

In  Rider  v.  BagleyJ*  it  was  held  that  where  fraud  or  con- 
tempt upon  the  supreme  court  is  charged  upon  the  owner,  for 
collecting  rents  with  a  knowledge  of  the  pendency  of  an 
application  for  a  receiver,  it  is  for  the  court  to  deal  with  the 
charge,  and  its  action  in  the  matter  will  not  be  subject  to 
review  on  appeal.  Assuming  that  the  court  has  power  to  com- 
pel such  owner  to  pay  the  rents  to  the  receiver  after  his 
appointment,  it  seems  that  the  exercise  of  such  power  is  in 
the  discretion  of  the  court,  and  consequently  not  reviewable.'^ 

§  827.  Accounting  of  receivers. — While  a  receiver  is  at 
all  times  liable  for  an  accounting,  he  can  be  called  upon  for 
an  accounting  only  by  the  court  which  appointed  him ;  ®°  and 
an  order  directing  him  to  deliver  the  property  to  another 
court  will  not  relieve  him  from  the  control  of  the  appointing 
court  and  its  power  to  compel  him  to  settle.*^  The  account- 
ing of  a  receiver  it  to  be  made  to  the  court  only;  he  cannot 
be  compelled  to  show  his  books  to  a  party  to  the  suit.*^  A 
report  upon  a  receiver's  account  cannot  be  excepted  to  and 
need  not  be  confirmed ;  *'  and  where  there  is  no  claim  of 
fraud  or  bad  faith  with  reference  to  the  accounts  of  a  re- 
ceiver, he  cannot  be  compelled  to  pay  the  costs  of  a  reference 
to  settle  the  same.** 

A  mortgagee  who  has  purchased  the  mortgaged  premises 
at  a  foreclosure  sale,  not  being  entitled  to  any  of  the  rents 
and  profits  which  accrued  prior  to  the  time  of  his  purchase, 
cannot  require  a  receiver  to  account  therefor  until  they  have 
been  collected.®^     If  there  are  two  or  more  mortgagees,  and 

78  84  N.  Y.  461.  83  Brower  v.  Brower,  2  Edw.  Ch. 

"J^  Rider  v.  Bagley,  84  N.  Y.  461.  (N.  Y.)   621. 

^^  Conkling  V.  Butler,  A  "Qhs.  C  C.  ^^  Radford   v.   Folsom,   55    Iowa, 

22.  276. 

81  Mabry  v.  Harrison,  44  Tex.  286.  85  Pcudola    v.    Alexanderson,    67 

^^Musgrove  v.  Nash,  3  Edw.  Ch.  Cal.  ZZ7. 
(N.  Y.)  172. 


1192  MORTGAGE    FORECLOSURES.  [§    827 

a  receiver  is  appointed  for  the  benefit  of  all  the  parties  to 
the  action,  the  fund  collected  by  the  receiver  will  be  subject 
to  whatever  disposition  may  appear  to  the  court  to  be  most 
equitable  under  the  circumstances  of  the  case.^^ 

But  it  has  been  held  that  where,  in  an  action  brought  to 
foreclose  a  mortgage,  a  subsequent  incumbrancer  who  is  made 
a  party  defendant  thereto,  appeals  in  his  own  behalf  and 
secures  the  appointment  of  a  receiver  of  the  rents  and  profits 
of  the  mortgaged  premises,  he  will  be  entitled  to  retain  the 
amount  collected  by  the  receiver  as  against  the  claim  of  a 
prior  mortgagee  whose  debt,  the  amount  realized  upon  the 
sale  of  the  mortgaged  property  under  the  judgment  entered  in 
the  action,  has  been  insufficient  to  satisfy,*""  because  a  junior 
incumbrancer  cannot  be  divested  of  his  right  to  the  rents  and 
profits  in  favor  of  the  party  holding  the  first  mortgage,  until 
such  party  procures  the  appointment  of  a  receiver  to  collect 
them  for  his  benefit  and  to  subordinate  them  to  his  own 
superior  rights.^® 

In  the  case  of  Post  v.  Dorr,®^  it  was  held  "to  be  an  estab- 
lished rule,  that  a  second  or  third  mortgagee  who  succeeds  in 
getting  a  receiver  appointed,  becomes  thereby  entitled  to  the 
rents  collected  during  the  appointment,  although  a  prior  mort- 
gagee steps  in  and  obtain  a  receivership  in  his  behalf  and  fails 
to  obtain  enough  out  of  the  property  to  pay  his  debt.     This 

^^  Keotigh  v.  McManus,  34  Hun  thereon.     There  was  a  balance  of 

(N.  Y.)  521.    In  this  case  an  action  rents  collected  and  in  the  hands  of 

was  brought  by  the  plaintiff  to  fore-  the  receiver  amount  to  more  than 

close  a  mortgage  given  by  the  de-  enough  to  pay  the  sum  remaining 

fendants,   McManus  and   his   wife,  due.     The  court  directed  that  the 

and  a  receiver  of  the  rents,  issues  amount  due  should  be  paid  to  the 

and  profits  of  the  premises  was  ap-  holder  of  the  second  mortgage,  and 

pointed.     Upon  the  sale  a  sufficient  the  balance  to  the  mortgagor, 
amount   was   realized   to   discharge  8'  Washington    Life    Ins.    Co.    V. 

the  amount  due  to  the  plaintiff,  to-  Fleischauer,  10  Hun  (N.  Y.)  117. 
gether  with  the  costs,  and  to  leave  a  ^^  See  Washington  Life  Ins.  Co.  v. 

surplus,  which  was  applied  upon  a  Fleischauer,  10  Hun   (N.  Y.)    117; 

second  mortgage  given  by  the  said  Howell  v.  Ripley,  10  Paige  Ch.  (N. 

McManus,  and  which,  when  so  ap-  Y.)  43. 
plied,   still   left  an   amount   unpaid  894  Edw.  Ch.  (N.  Y.)  412,  414. 


§    828]  RECEIVER.  1193 

is  on  the  principle  that  a  mortgagee  acquires  a  specific  lien 
upon  the  rents  by  the  appointment  of  a  receiver  of  them; 
and  if  he  be  a  second  or  third  incumbrancer,  the  court  will 
give  him  the  benefit  of  his  superior  diligence  over  his  senior, 
in  respect  to  the  rents  which  accrued  during  the  time  that  the 
elder  mortgagee  took  no  measure  to  have  the  receivership 
extended  to  his  suit  and  for  his  benefit." 

The  court  of  appeals  of  New  York,  In  re  Maddock,^°  say 
that  whether  a  receiver  appointed  in  a  mortgage  foreclosure 
suit  to  receive  the  rents  of  the  mortgaged  premises  pendente 
lite  should  be  required  by  the  court  to  pay  the  expense  in- 
curred by  an  adjoining  owner  in  securing  an  unsafe  wall 
on  the  mortgaged  premises,  on  failure  of  the  owner  and  re- 
ceiver so  to  do  after  notice  from  the  fire  department,  is  dis- 
cretionary with  the  court  appointing  the  receiver,  and  no 
appeal  lies  from  its  determination,  for  the  reason  that  such  a 
case  is  not  covered  by  the  New  York  Consolidation  Act,^^ 
providing  for  the  recovery  of  the  expense  of  the  work  done 
to  secure  an  unsafe  party  wall,  by  direction  of  the  fire  de- 
partment. 

§  828.  Compensation  of  receivers. — The  compensation 
of  a  receiver  should  be  such  as  would  be  reasonable  for  the 
services  rendered  by  a  person  competent  to  perform  the  duties 
of  the  office,  rather  than  any  fixed  commission.^^  What  is  a 
reasonable  and  proper  compensation  for  a  receiver  is  to  be 
determined  by  proof  of  the  facts,  and  not  by  the  opinions  of 
witnesses.  Five  per  centum  on  the  amount  received  and 
disbursed  seems  to  be  the  customary  allowance. ^^  In  New 
York  a  receiver  is  entitled  to  receive  commissions  at  the  rate 
prescribed  by  statute  ^*  for  receiving  and  paying  out  moneys, 

90  103  N.  Y.  630,  9  N.  E.  498.  94  n.  Y.  Code  Civ.  Proc.  §  3320, 

91  N.  Y.  Acts  1882,  c.  410,  §  473.  fixes  the  maximum  rate  at  five  per 

92  See  Jones  v.  Keen,   115   Mass.  centum,     unless     the     commissions 
170.  amount  to  less  than  one  hundred 

93  Stretch  v.  Gowdcy,  3  Tenn.  Ch.  dollars. 


1194 


MORTGAGE    FORECLOSURES. 


[§  828 


viz.,  one-half  of  the  specified  rate  for  receiving  and  one-half 
for  disbursing.^' 

But  where  a  court  appoints  a  receiver  in  an  action  pending 
therein,  it  may  determine  the  rate  of  his  compensation  inde- 
pendently of  the  statute  and  with  reference  to  the  peculiar 
circumstances  of  the  case.^^  A  receiver  is  entitled  to  be  paid 
his  commissions  out  of  funds  in  his  hands,^'  or  to  have  them 
taxed  as  costs,^*  without  regard  to  the  result  of  the  liti- 
gation.^^ 

The  expenses  reasonably  incurred  by  a  receiver  in  the  dis- 
charge of  his  trust  are  a  lien  upon  the  trust  property  prior  to 
that  of  the  bond  holders  or  mortgagees.^  Among  the  ex- 
penses which  should  be  allowed  to  a  receiver  are  reasonable 
fees  for  counsel  employed  by  him  in  the  proper  discharge 
of  his  trust,''  the  costs  of  litigation  and  the  expenses  incurred 
in  taking  care  of,  protecting  and  repairing  the  property  in 
his  charge.^  In  New  York,  the  allowance  of  commissions  and 
expenses  to  such  a  reciver  is  governed  by  the  provisions  of 
the  Code  of  Civil  Procedure.* 


^^  Howes  V.  Davis,  4  Abb.  (N. 
Y.)  Pr.  71. 

^^  Gardiner  v.  Tyler,  4  Abb.  (N. 
Y.)  Pr.  N.  S.  463,  3  Keyes  (N.  Y.) 
505,  3  Trans.  App.   161. 

^"^  Hopfensack  v.  Hopfensack,  61 
How.  (N.  Y.)  Pr.  498;  Radford  v 
Folsom,  55  Iowa,  276 ;  Nolte  v.  Mor- 
gan, 86  Kan.  823,  122  Pac.  886. 

98  Hutchinson  v  Hampton,  1  Mon. 
T.  39. 

99  Hopfensack  v.  Hopfensack,  61 
How.  (N.  Y.)   Pr.  498. 

1  McLane  v.  Placerville  &  S.  V . 
R.  Co.  66  Cal.  606. 

2  United  States  Trust  Co.  v.  New 
York,  IV.  S.  &  B.  R.  Co.  101  N. 
Y.  478;  McLane  v.  Placerville  & 
S.   V.  R.  Co.  66  Cal.  606.     As  to 


when  a  receiver  will  not  be  allowed 
to  charge  against  the  fund,  fees  paid 
to  counsel,  see  Ranney  v.  Peyser, 
20  Hun  (N.  Y.)  11. 

3  McLane  v.  Placerville  &  S.  V. 
R.  Co.  66  Cal.  606.  See  also 
Ruprecht  v.  Muhlke,  as  ex'r,  etc. 
225  111.  188,  80  N.  E.  106. 

4N.  Y.  Code  Civ.  Proc.  §  3320; 
United  States  Trust  Co.  v.  N.  V., 
W.  S.  &  B.  R.  Co.  101  N.  Y.  478. 
The  Act  of  1883,  chap,  378,  relates 
to  receivers  of  corporations  appoint- 
ed in  proceedings  in  bankruptcy ;  a 
receiver  appointed  in  an  action  to 
foreclose  a  mortgage  executed  by  a 
corporation,  is  not  entitled  to  the 
fees  specified  in  said  section. 


§    830]  RECEIVER.  1195 

Where  it  is  determined  that  a  receiver  has  been  wrongfully 
appointed,  the  costs  of  the  receivership  cannot  be  taxed 
against  the  mortgaged  premises.' 

§  829.  Removal  of  receivers. — A  receiver  appointed  in 
a  mortgage  foreclosure  may  be  removed  for  misconduct  by 
the  court  appointing  him  on  the  application  of  any  party 
interested ;  ^  but  where  such  receiver  has  been  appointed  by 
a  court  having  jurisdiction  of  the  case,  no  other  court  of  co- 
ordinate jurisdiction  can  remove  him.'  A  receiver  should 
not  be  removed  without  notice  to  the  plaintiff  in  the  action, 
or  to  the  person  at  whose  instance  he  was  appointed.*  Nor 
should  he  be  removed  without  notice,  also,  to  all  persons 
who  have  appeared  in  the  action.^ 

§  830.  Discharge  of  receivers. — The  appointment  of  a 
receiver  in  an  action  to  foreclose  a  mortgage  will  continue 
during  the  pendency  of  the  action,  unless  otherwise  directed 
in  the  order  appointing  him."  Where  his  duties  have  not 
all  been  performed,  a  receiver  should  not  be  discharged  on 
his  own  application  unless  he  shows  good  cause  therefor, 
especially  if  his  discharge  might  affect  other  parties  to  the 
action.  His  mere  desire  to  be  discharged,  though  coupled 
with  a  statement  of  the  complication  of  his  accounts  and  the 
necessity  of  losing  much  time  in  the  business  of  his  receiver- 

^Joslin  V.  Williams,  76  Neb.  602,  R.  Co.  2  Flipp.   C.  C.  704,  3  Fed. 

112  N.  W.  343.  97,  11  Cent.  L.  J.  89,  26  Int.  Rev. 

M  VanSant.  Eq.  Pr.  382.     If  the  Rec.  30,  90,  10  Rep.  359;  Bruce  v. 

person   who   is   appointed    receiver,  Manchester  &  K.  R.  R.  Co.  19  Fed. 

absents    himself    and    fails    to    file  342. 

the  bond  ordered,  the  court  may,  in  ^  Attrill  v.  Rockaway  Beach  Imp. 

its  discretion,  remove  him  and  ap-  Co.  25  Hun   (N.  Y.)  376. 

point  another.    In  re  Louisiana  Sav-  ^  See  Attrill  v.  Rockaway  Beach 

ings  Bank,  etc.  Co.  35  La.  An.  196.  Imp.  Co.  25  Hun  (N.  Y.)  509. 

'  Young  v.  Montgomery  &  E.  R.  i"  Weems    v.    Lathrop,    42    Tex. 

R.  Co.  2  Woods   C.   C.   606.     See  207. 
Kennedy  v.  Indianapolis,  C.  &  L.  R. 


1196  MORTGAGE    FORECLOSURES.  [§    830 

ship,  is  not  sufficient.^*  And  where  the  protection  of  the 
rights  of  a  defendant  requires  the  continuance  of  a  receiver, 
the  court  will  not  grant  a  discharge,  although  the  suit  may  be 
at  an  end;  but  it  will  require  the  defendant  thus  protected  to 
file  a  bill  forthwith  to  settle  his  rights.*^ 

A  receiver  should  not  be  discharged  without  notice  to  all 
interested  parties,  but  the  discharge  of  a  receiver  without 
notice  is  not  necessarily  such  an  irregularity  as  to  justify  a 
reversal  of  the  order. *^  The  payment  of  the  mortgage  debt 
by  the  mortgagor,  after  the  appointment  of  a  receiver,  does 
not,  ipso  facto,  discharge  the  receiver.  The  receiver  may 
have  a  claim  for  expenses  incurred  in  the  exercise  of  his 
duties  which  should  be  paid  before  the  property  held  by  him 
is  taken  from  his  possession.** 

1^  Beers  v.  Chelsea  Bank,  4  Edw.      Largan  v.   Bowen,   1    Sch.   &  Lef . 
Ch.  (N.  Y.)  277.  296. 

12  Whiteside    v.     Prendergast,    2  ^3  Coburn  v.  Ames,  57  Cal.  201,  28 

Barb.  Ch.  (N.  Y.)  471.     See  Mur-      Am.  Dec.  634. 

rough  v.   French,   2   Molloy,   497;  '^^Crook  v.  Findley,  (Q 'Hovi.  (N. 

Y.)  Pr.  375. 


CHAPTER  XXXII. 

PROCEEDINGS  ON  SURPLUS   MONEYS. 

PAYING  SURPLUS  INTO  COURT — CHARACTER  OF  SURPLUS,  REALTY  OB  PERSON- 
ALTY— ADJUSTING  CLAIMS  AND  EQUITIES — QUESTIONS  OF  PRIOiaTY — LIENS 
ON    SURPLUS — DOWER — MECHANICS'    LIENS. 

§  831.  Introductory. 

§  832.  Rules  of  court. 

§  883.  Provisions  of  Code. 

§  834.  Object  of  the  statute  and  court  rule. 

§  835.  Payment  of  surplus  into  court. 

§  836.  When  surplus  not  paid  into  court. 

§  837.  When  surplus  paid  into  surrogate's  court. 

§  838.  Paying  surplus  into  court  on  foreclosure  by  advertisement. 

§  839.  Character  of  surplus — Personal  or  real  property. 

§  840.  Surplus  personalty,  where  land  so  converted  under  wilL 

§  841.  Massachusetts  doctrine. 

§  842.  Character  of  surplus  belonging  to  infant. 

§  843.  Who  entitled  to  apply  for  surplus. 

§  844.  Same — Assignee  for  benefit  of  creditors. 

§  845.  Same — Dower  interest. 

§  846.  Same — Grantee  or  assignee. 

§  847.  Same — Lessees  of  mortgaged  premises. 

§  848.  Same — Judgment  creditors. 

§  849.  Same — Same — Attachment  creditors. 

§  850.  Same — Subsequent   lienors. 

§  851.  Same — Lienors  paying  money  to  protect  their  liens. 

§  852.  Same — Where  foreclosure  under  power. 

§  853.  Same — Same — Notice  of  sale. 

§  854.  Protecting  claims  to  surplus. 

§  855.  Adjusting  equities. 

§  856.  Liens  to  be  paid  in  order  of  priority  in  time. 

§  857.  Questions  of  priority — How  determined. 

§  858.  Claims  must  be  liens  on  mortgaged  premises. 

§  859.  Equitable   distribution — Claims  liens  on  two   funds. 

§  860.  Distribution  of  surplus^ — Mortgagor  deceased. 

§  861.  Interest  of  life-tenant  in  surplus. 

§  862.  Rights  of  prior  incumbrancers  not  parties. 

§  863.  Liens  attaching  pendente  lite. 

1197 


1198  MORTGAGE    FORECLOSURES.  [§    831 

§  864.  Equitable  priorities  between  subsequent  mortgagees. 

§  865.  Burden  of  proof  in  showing  priorities. 

§  866.  Rights  of  equal  mortgagees — Senior  mortgagees. 

§  867.  Several  mortgages  security  for  same  debt. 

§  868.  Priority  of  unrecorded  mortgage  over  subsequent  judgment. 

§  869.  Second  mortgage  and  junior  judgments. 

§  870.  Preference   of    mortgage   over   mechanic's    lien. 

§  871.  Lien  of  judgment  on  surplus. 

§  872.  What  interests  bound  by  lien  of  judgment. 

§  873.  Satisfying  judgments  from  surplus. 

§  874.  Specific  lien  of  judgment  and  executory  contract. 

§  875.  Judgment  by  confession  as  an  indemnity. 

§  876.  Judgment  against  sheriff. 

§  877.  Judgment  confessed  by  one  member  of  a  firm. 

§  878.  Married  woman's  equitable  right  to  surplus. 

§  879.  Dower  in  surplus  moneys. 

§  880.  Inchoate   right  of  dower. 

§  881.  Investment  of  dower  in  surplus — Payment  of  gross  sum. 

§  882.  Homestead  right  in  surplus. 

§  883.  Where   claim  of   collateral   assignee  less  than  mortgage. 

§  884.  Purchase  of  part  of  premises  by  mortgagee. 

§  885.  Interest  of  lessee  for  years  in  surplus. 

§  886.  Mechanic's  lien. 

§  887.  Rights  of  cesfuis  que  trust  in  surplus. 

§  888.  Lien  for  attorney's  fees  on  surplus. 

§  889.  Disposition  of  surplus  moneys  not  applied  for. 

§  831.  Introductory. — Surplus  moneys  in  mortgage 
foreclosures  are  such  moneys  as  remain  undistributed,  after 
the  referee  to  sell  has  paid  from  the  proceeds  of  the  sale  the 
costs  of  the  suit,  the  expenses  of  the  sale,  the  amount  due 
for  taxes  and  assessments,  and  the  sum  or  sums  found  to  be 
due  on  the  complaint,  or  the  complaint  and  the  cross-bills. 
Thus,  if  the  holder  of  a  note  secured  by  a  mortgage  or  a 
deed  of  trust  receives  more  than  enough  to  pay  his  debt  and 
tlie  costs  on  the  sale  under  foreclosure,  the  amount  in  excess 
will  be  surplus,  for  which  he  will  be  legally  liable  as  for  any 
other  debt." 

In  a  case  where  one  of  several  joint  owners  conveys  his 
interest  to  the  others  who  have  given  a  mortgage  upon  the 

^^Laughlm  v.  Hccr,  89  111.  119. 


§    831]  PROCEEDINGS  ON   SURPLUS   MONEYS,  1199 

whole  property,  and  waives,  in  favor  of  their  creditor,  his 
privilege  and  mortgage  for  the  purchase  price  upon  the  sale 
of  the  property  to  pay  such  mortgage  debt,  the  creditor, 
after  the  full  satisfaction  of  his  debt,  cannot  apply  the  bal- 
ance to  a  subsequent  mortgage  in  his  favor. ^®  And  a  mort- 
gagee who  has  bid  in  the  land  on  foreclosure  under  a  judg- 
ment for  more  than  the  debt,  and  who,  pending  an  action 
to  reform  the  judgment,  demanded  and  received  a  deed,  thus 
electing  to  hold  the  land,  is  liable  in  an  action  by  the  person 
whose  land  was  sold,  and  who  elects  to  affirm  the  sale,  for 
the  excess  of  the  amount  of  the  judgment  above  what  he  was 
entitled  to,  where  the  judgment  has  been  reformed,  showing 
such  excess." 

The  disposition  of  the  proceeds  of  the  sale  of  the  mort- 
gaged premises  on  foreclosure,  in  paying  the  plaintiff  and 
prior  lienors  or  creditors,  must  be  made  as  directed  in  the 
judgment.  The  referee  or  other  officer  making  the  sale  is 
generally  directed  to  retain  from  the  proceeds  of  such  sale  a 
sum  sufficient  to  pay  his  fees  and  commissions,"  together 
with  the  expenses  of  the  sale,  and  including  the  sums  paid,  if 
any,  for  taxes,  assessments  and  water  rates,  or  to  be  paid  to 
redeem  the  property  from  a  sale  or  sales  made  thereunder," 
and  to  pay  to  the  plaintiff  or  his  attorney  the  amount  of  his 
debt,  interest  and  costs;  and  if  any  surplus  remains  from 
the  proceeds  of  the  sale  after  making  such  payments,  to  pay 
it  into  court  for  the  benefit  of  the  persons  entitled  thereto. ^° 

^^  Reggio  v.   McCan,  40  La.   An.  Y.  411,  414;  Poughkeepsie  Savings 

479,  4  So.  478.  Bank   v.    Winn,  56  How.    (N.    Y.) 

^T  Mitchell   V.    Weaver,    118    Ind.  Pr.    368,    N.    Y.    Code    Civ.    Proc. 

55.  10  Am.  St.  Rep.  104,  20  N.  E.  §  1676. 
52S.  20  Beekman  v.  Gibbs.  8  Paige  Ch. 

18  N.  Y.  Code  Civ.  Proc.  §§  3297,  (X.  Y.)  511.  See  DcForcst  v.  Far- 
3307.  ley.   62    N.    Y.    628;    Livingston    v. 

19  Cornell  v.  Woodruff,  77  N.  Y.  Mildrum,  19  N.  Y.  440,  N.  Y.  Code 
203;  Catlin  v.  Grissler,  57  N.  Y.  Civ.  Proc.  §  1633;  Clark  v.  Carnall, 
363 ;  Easton  v.  Pickersgill,  55  N.  Y.  18  Ark.  209. 

310;   Williams  v.  Townsend,  31   N. 


1200  MORTGAGE    FORECLOSURES.  [§    832 

The  supreme  court  of  the  District  of  Columbia  say  that 
where  land  is  sold  by  the  trustees  during  the  mortgagor's 
life,  the  surplus,  after  satisfying  the  debt,  is  payable  to  him, 
or,  if  he  dies  before  the  time  of  payment,  to  his  executors, 
administrators,  or  assigns.  If  it  is  sold  after  his  death  intes- 
tate, it  is  payable  to  his  heirs.^^ 

The  formal  directions  in  a  deed  of  trust  as  to  the  appli- 
cation of  the  surplus  in  case  the  property  is  sold  to  satisfy 
the  debt  are  generally  superfluous  as  the  law  itself  directs 
the  application.^^ 

§  832.  Rules  of  court. — The  rules  of  the  supreme 
court  in  New  York  provide  that  "all  surplus  moneys  arising 
from  the  sale  of  mortgaged  premises,  under  any  judgment, 
shall  be  paid  by  the  sheriff  or  referee  making  the  sale,  within 
five  days  after  the  same  shall  be  received  and  be  ascertainable, 
in  the  city  of  New  York  to  the  chamberlain  of  the  said  city, 
and  in  other  counties  to  the  treasurer  thereof,  unless  other- 
wise specially  directed,  subject  to  the  further  order  of  the 
court,  and  every  judgment  in  foreclosure  shall  contain  such 
directions,  except  where  other  provisions  are  specially  made 
by  the  court."  ^* 

The  rules  also  provide  that  "on  filing  the  report  of  the  sale, 
any  party  to  the  suit,  or  any  other  person  who  had  a  lien  on 
the  mortgaged  premises  at  the  time  of  the  sale,  upon  filing 
with  the  clerk  where  the  report  of  sale  is  filed  a  notice,  stat- 
ing that  he  is  entitled  to  such  surplus  moneys  or  some  part 
thereof,  and  the  nature  and  extent  of  his  claim,  may  have  an 
order  of  reference  to  ascertain  and  report  the  amount  due 
to  him,  or  to  any  other  person,  which  is  a  lien  upon  such 
surplus  moneys,  and  to  ascertain  the  priorities  of  the  several 
liens  thereon ;  to  the  end  that,  on  the  coming  in  and  confirma- 
tion of  the  report  on  such  reference,  such  further  order  may 

^^  In  re  Thompson,  6  Mackey  (D.  ^^  Re    Thompson,  6   Mackey    (D. 

C.)  536.  C.)  536. 

23  N.  Y.  Supreme  Court  Rule  61. 


§    833]  PROCEEDINGS  ON   SURPLUS   MONEYS.  1201 

be  made  for  the  distribution  of  the  surplus  moneys  as  may 
be  just.  The  referee  shall,  in  all  cases,  be  selected  by  the  court. 
The  owner  of  the  equity  of  redemption,  and  every  party  who 
appeared  in  the  cause,  or  who  shall  have  filed  a  notice  of 
claim  with  the  clerk,  previous  to  the  entry  of  the  order  of 
reference,  shall  be  entitled  to  service  of  a  notice  of  the  appli- 
cation for  the  reference  and  to  attend  on  such  reference,  and 
to  the  usual  notices  of  subsequent  proceedings  relative  to  such 
surplus."  ^* 

"But  if  such  claimant  or  such  owner  has  not  appeared,  or 
made  his  claim  by  an  attorney  of  this  court,  the  notice  may 
be  served  by  putting  the  same  into  the  post-office,  directed 
to  the  claimant  at  his  place  of  residence,  as  stated  in  the 
notice  of  his  claim,  and  upon  the  owner  in  such  manner  as 
the  court  may  direct.  All  official  searches  for  conveyances 
or  incumbrances,  made  in  the  progress  of  the  cause,  shall 
be  filed  with  the  judgment-roll,  and  notice  of  the  hearing 
shall  be  given  to  any  person  having,  or  appearing  to  have,  an 
unsatisfied  lien  on  the  moneys  in  such  manner  as  the  court 
shall  direct;  and  the  party  moving  for  the  reference  shall 
show,  by  affidavit,  what  unsatisfied  liens  appear  by  such 
official  searches,  and  whether  any,  and  what  other  unsatisfied 
liens  are  known  to  him  to  exist."  ^^ 

§  833.  Provisions  of  Code. — The  New  York  Code  of 
Civil  Procedure,^^  provides  that,  "if  there  is  any  surplus  of  the 
proceeds  of  the  sale,  after  paying  the  expenses  of  the  sale, 
and  satisfying  the  mortgage  debt  and  the  costs  of  the  action, 
it  must  be  paid  into  court,  for  the  use  of  the  person  or  per- 
sons entitled  thereto.  If  any  part  of  the  surplus  remains  in 
court  for  the  period  of  three  months,  the  court  must,  if  no 
application  has  been  made  therefor,  and  may,  if  an  application 
therefor  is  pending,  direct  it  to  be  invested  at  interest,   for 

24  N.  Y.  Supreme  Court  Rule  64.  26  n.  Y.  Code  Civ.  Proc.  §  1633. 

25  N.  Y.  Supreme  Court  Rule  64. 

Mortg.  Vol.  II.— 76. 


1202  MORTGAGE    FORECLOSURES.  [§    834 

the  benefit  of  the  person  or  persons  entitled  thereto,  to  be 
paid  upon  the  direction  of  the  court."  ^' 

This  section  of  the  Code  is  a  re-enactment  of  the  provisions 
of  the  revised  statutes,^^  which  obviated  the  necessity  that 
prevailed  before  their  passage  of  ascertaining  the  amounts 
of  all  incumbrances  and  of  adjudging  the  rights  of  all  the 
defendants,  before  making  a  decree  for  the  sale  of  the  mort- 
gaged premises.^^  Under  the  practice  as  it  prevailed  previous 
to  the  passage  of  the  revised  statutes  and  the  adoption  of  the 
supreme  court  rule  as  above  stated,  junior  incumbrancers  were 
required  to  be  made  parties  prior  to  the  entry  of  the  decree,^** 
in  order  that  they  might  set  up  their  claims  by  answer  and 
thereby  preserve  their  liens  upon  the  surplus  moneys  arising 
from  the  sale  of  the  mortgaged  premises. 

§  834.  Object  of  the  statute  and  court  rule. — Under 
this  practice  it  frequently  happened  that  a  mortgagee  whose 
claim  was  undisputed  was  delayed  in  its  enforcement,  until 
the  subsequent  incumbrancers  had  litigated  as  between  them- 
selves their  respective  claims  to  the  surplus.  Costs  being  al- 
lowed to  every  party  who  appeared  and  answered,  it  not  in- 
frequently happened  that  the  fund  was  greatly  diminished, 
if  not  consumed,  by  the  expenses  of  the  litigation.  This  was 
entirely  needless  where  the  proceeds  of  the  property  were 
only  sufficient  to  pay  the  amount  of  the  plaintiff's  claim;  it 
was  to  avoid  this  delay  and  loss  that  the  statute  was  enacted." 

2' See    Dunning    v.    Ocean    Nat.  (N.     Y.)      209;     Oppenlieimer     v. 

Bank,  61   N.  Y.  497,  10  Am.   Rep.  Walker,  3  Hun  (N.  Y.)  30. 

293;    Bergen   v.    Sncdeker,   8    Abb.  28  2  N.  Y.  Rev.  Stat.  192,  §§  159, 

(N.  Y.)  N.  C.  50,  21  Alb.  L.  J.  54;  160. 

Mutual  Life  Ins.  Co.  v.  Truchtiiicht,  29  Wheeler  v.  VanKuren,  1  Barb. 
3  Abb.  (N.  Y.)  N.  C.  135;  Tator  v.  Ch.  (N.  Y.)  490;  Renwick  v.  Ma- 
Adams,  20  Hun  (N.  Y.)  131;  Sav-  comb.  Hopk.  Ch.  (N.  Y.)  277. 
ings  Bank  of  Utica  v.  Wood,  17  ^'^  Renwick  v.  Macomb,  Hopk. 
Hun  (N.  Y.)  133;  Hurst  V.Harper,  Ch.  (N.  Y.)  277.  See  Kcnney  v. 
14  Hun  (N.  Y.)  280;  Savings  Inst.  Apgar,  93  N.  Y.  546. 
V.  Oslcy,  4  Hun  (N.  Y.)  657;  At-  ^^  Miller  v.  Case,  Clarke  Ch.  (N. 
lantic  Sav.  Bank  v.  Hiler,  3   Hun  Y.)    395;    Eagle   Fire   Ins.    Co.   v. 


§    835]  PROCEEDINGS  ON  SURPLUS   MONEYS.  1203 

Under  the  statute  and  the  rule  in  mortgage  foreclosures, 
subsequent  incumbrancers  who  have  no  rights  or  interests 
adverse  to  those  of  the  mortgagee,  although  parties  to  the  suit, 
are  not  permitted  to  litigate  their  respective  claims  to  the 
surplus  as  between  themselves,  until  it  is  ascertained  that 
there  is  a  surplus. ^^  If  there  is  a  surplus  after  the  sale,  the 
defendants  can  then  settle  their  claims  to  it  by  making  their 
proofs  and  having  their  respective  rights  equitably  determined 
before  a  referee.^^ 

§  835.  Payment  of  surplus  into  court. — All  surplus 
arising  from  the  proceeds  of  a  mortgage  foreclosure  sale 
must  be  paid  into  court;  its  subsequent  distribution  is  regu- 
lated by  the  rules  of  the  supreme  court. ^*  The  Code  requires 
that  the  surplus  of  the  proceeds  of  a  sale,  after  the  payment 
of  the  expenses  thereof  and  the  satisfaction  of  the  mortgage 
debt,  shall  be  paid  into  court  for  the  use  of  the  person  or 
persons  entitled  thereto.'^ 

The  supreme  court  rules  ^®  require  "that  all  surplus  moneys 
arising  from  the  sale  of  mortgaged  premises,  under  any  judg- 
ment, shall  be  paid  by  the  sheriff  or  referee  making  the  sale, 
within  five  days  after  the  same  shall  be  received  and  be  ascer- 
tainable, in  the  city  of  New  York  to  the  chamberlain  of  said 

Flanagan,   1    How.   App.    Cas.    (N.  Co.  v.   VanRensselaer,  4  Paige  Ch. 

Y.)    311;   Farmers'  Loan   &   Trust  (N.  Y.)  85. 

Co.  V.   Seymour,  9   Paige  Ch.    (N.  ^^  Miller  v.  Case,  Clarke  Ch.   (N. 

Y.)  538.  Y.)    395,    399;    Union    Ins.    Co.    v. 

^2  Miller  V.  Case,  Oarke  Ch.   (N.  VanRensselaer,    4    Paige    Ch.     (N. 

Y.)    395;    Hubbell   v.    Schreyer,    4  Y.)    85. 

Daly  (N.  Y.)  365,  14  Abb.  (N.  Y.)  ^^  Ralit  v.  Attrtll,  106  N.  Y.  423, 

Pr.  N.  S.  287;  Eagle  Fire  Ins.  Co.  60  Am.  Rep.  456,  modifying  42  Hun 

V.  Flanagan,  1  How.  App.  Cas.  (N.  (N.  Y.)  414.    N.  Y.  Supreme  Court 

Y.)   311;  Drury  v.  Clark,  16  How.  Rules  61,  64.     For  Florida  rule  see 

(N.  Y.)  Pr.  424,  430;  Smart  v.  Be-  Jackson  v.  Button,  46  Fla.  513,  35 

ment,  3  Keyes  (N.  Y.)  241,  4  Abb.  So.  74. 

App.  Dec.    (N.   Y.)    253;   Farmers'  35  x.  Y.  Code  Civ.  Proc.  §  1633. 

Loan   &   Trust  Co.  v.   Seymour,  9  36  jvj    Y.  Supreme  Court  Rule  61 
Paige  Ch.  (N.  Y.)  538;  Union  Ins 


1204  MORTGAGE    FORECLOSURES.  [§    835 

city  and  in  other  counties  to  the  treasurer  thereof,  unless 
otherwise  specially  directed,  subject  to  the  further  order  of 
the  court;  and  every  judgment  in  foreclosure  shall  contain 
such  directions,  except  where  other  provisions  are  specially 
made  by  the  court.  No  report  of  a  sale  shall  be  filed  or  con- 
firmed, unless  accompanied  by  a  proper  voucher  for  the 
surplus  moneys,  and  showing  that  they  have  been  paid  over, 
deposited  or  disposed  of  in  pursuance  of  the  judgment."  ^^ 

A  judgment  creditor  has  a  right  to  demand  that  the  surplus 
money  arising  upon  a  foreclosure  shall  be  brought  into 
court;  ^®  but  where  he  has  not  answered,  a  judgment  directing 
the  payment  of  the  surplus  moneys  to  him  will,  of  course,  be 
improper.'^  The  assignee  of  a  mortgage,  where  the  assign- 
ment was  made  after  a  lis  pendens  had  been  filed  for  the 
foreclosure  of  a  prior  mortgage,  is  entitled  to  appear  and  ask 
that  the  referee  pay  into  court  the  surplus  shown  to  exist  by 
the  judgment  and  the  report  of  sale,  even  though  the  referee 
may  report  a  deficiency .*°  If  the  report  of  sale  shows  that  the 
deficiency  reported  was  caused  by  the  allowance  of  a  prior 
mortgage  which  was  not  authorized  by  the  judgment,  and 
that  but  for  such  allowance  there  would  be  a  surplus,  the 
surplus  thus  ascertained  will  be  ordered  to  be  paid  into 
court." 

The  supreme  court  of  Louisiana,  in  the  case  of  Tessier  v. 
Burgeois,*^  say  that  the  purchaser  of  immovable  property  of 
an  insolvent  succession,  sold  under  executory  process,  cannol 

37  N.  Y.  Supreme  Court  Rule  61.  accoum.      Sinclair   v.    Learned,    51 

The  non-payment  by  the  sheriff  to  Mich.  335. 

the   mortgagor   of    the   surplus   re-  ^^  Denton  v.  Nanny,  8  Barb.   (N 

ceived    on   a    foreclosure    sale    will  Y.)  620. 

not  defeat  the  sale,  for  the  sheriff  ^^  Rogers  v.  Ivers,  23  Hun    (N. 

must  account  to  the  mortgagor  for  Y.)  424. 

the  money,  even  though  the  mort-  ^  Koch  v.  Purcell,  45  N.  Y.  Supr. 

gagor  fails  to  Obtain  it;  and  if  the  Ct.   (13  J.  &  S.)    162. 

mortgagor  redeems  without  obtain-  ^^  Koch  v.  Purcell,  45  N.  Y.  Supr. 

ing  it,  he  will  still  have  an  unques-  Ct.  (13  J.  &  S.)  162. 

tionable  right  to  have  it  taken  into  *2  33  l^.  Ann.  256. 


§    836]  PROCEEDINGS  ON  SURPLUS  MONEYS.  1205 

retain  the  balance  of  the  purchase  price,  after  satisfaction  of 
the  claim  of  the  seizing  creditor,  for  payment  of  other  mort- 
gages and  liens,  unless  there  are  special  mortgages  of  in- 
ferior rank  existing  against  the  property,  or  unless  he  is 
threatened  with  eviction  by  the  holders  of  general  mortgages 
affecting  the  property.  But  in  the  more  recent  case  of  Morris 
V.  Cain,*^  the  court  say  that  a  purchaser  at  foreclosure  sale 
under  proceedings  for  the  collection  of  one  of  a  series  of 
mortgage  notes  is  entitled  to  retain  the  surplus  beyond  the 
amount  taken  under  the  writ  of  sale  until  it  is  demanded  by 
the  owners  of  the  remainder  of  the  series.  But  he  is  liable 
for  interest  at  the  rate  of  five  per  cent,  per  annum  until  such 
surplus  is  paid  over  or  deposited.** 

It  is  thought  the  court  may  in  certain  cases  require  the 
surplus  money  to  be  invested  in  a  given  way;  and  where  a 
direction  is  given  for  such  investment  no  partial  compliance 
with  the  order  of  court,  without  showing  good  reason  for 
failure  to  render  strict  obedience  to  the  order,  will  release 
from  liability  for  failure  to  comply  with  the  court's  order.*^ 

§  836.  When  surplus  not  paid  into  court. — Where  the 
plaintiff  has  purchased  the  claims  of  judgment  creditors  and 
junior  lienors,  for  whose  benefit  a  mortgage  has  been  exe- 
cuted, the  surplus  moneys  arising  on  the  sale  under  a  prior 
mortgage  will  not  be  directed  to  be  paid  into  court,  as  the 
plaintiff  is  entitled  thereto,  and  the  fund  would  only  be  bur- 
dened with  the  payment  of  fees  and  commissions  by  such 
payment  into  court.*^ 

§  837.  When  surplus  paid  into  surrogate's  court. — The 

New  York  Code  provides  *'  that,  where  real  property,  or 
an  interest  in  real  property,  is  sold  in  an  action  or  a  special 

«39  La.  Ann.  712,  2  So.  418.  ^Hoffman  v.  Sullivan,  23  N.  Y. 

4439  La.  An.  712,  2  So.  418.  Week.  Dig.  311. 
«  Hubbard  v.  Elden,  43  Ohio  St.  «  n.  Y.  Code  Civ.  Proc.  §  2798. 

380,  2  N.  E.  434. 


1206  MORTGAGE    FORECLOSURES.  [§    838 

proceeding  to  satisfy  a  mortgage  thereon,  which  accrued  dur- 
ing the  decedent's  hfe-time,  and  letters  testamentary  or  let- 
ters of  administration,  upon  the  decedent's  estate,  were,  with- 
in four  years  before  the  sale,  issued  from  a  surrogate's  court 
of  the  state,  having  jurisdiction  to  grant  them,  the  surplus 
moneys  arising  from  such  sale  of  the  premises  must  be  paid 
into  the  surrogate's  court  from  which  the  letters  issued.  If 
the  sale  was  made  pursuant  to  the  directions  contained  in  a 
judgment  or  order,  the  surplus  remaining  after  the  payment 
of  all  the  liens  upon  the  property,  chargeable  upon  the  pro- 
ceeds, which  existed  at  the  time  of  the  decedent's  death,  must 
be  so  paid.  If  the  sale  was  made  in  any  other  manner,  the 
surplus,  exceeding  the  lien  to  satisfy  which  the  property  was 
sold,  and  the  costs  and  expenses,  must,  within  thirty  days  after 
the  receipt  of  the  money  from  which  it  accrues,  be  so  paid 
over  by  the  person  receiving  that  money.  The  receipt  of  the 
surrogate,  or  the  clerk  of  the  surrogate's  court,  or  the  county 
treasurer,  as  the  case  may  be,  is  a  sufficient  discharge  to  the 
person  paying  the  money." 

§  838.  Paying  surplus  into  court  on  foreclosure  by 
advertisement. — Where  a  mortgage  is  foreclosed  by 
advertisement,  the  "attorney  or  other  person  who  receives  the 
money  upon  the  sale,  must,  within  ten  days  after  he  receives 
it.  pay  into  the  supreme  court  the  surplus  exceeding  the  sum 
due  and  to  become  due  upon  the  mortgage,  and  the  costs  and 
expenses  of  the  foreclosure,  in  like  manner  and  with  like 
effect,  as  if  the  proceedings  to  foreclose  the  mortgage  were 
taken  in  an  action  brought  in  the  supreme  court,  triable  in  the 
county  where  the  sale  took  place."  ® 

On  the  failure  of  the  attorney,  or  other  person  receiving 

48  See    Dunning    v.    Ocean    Nat.  « N.  Y.  Code  Qv.  Proc.  §  2404. 

Bank,  61   N.  Y.  497,   19  Am.  Rep.       See  post,  §  891. 
293;  Stillwell  v.  Swarthout,  10  N. 
Y.  Wk.  Dig.  369;  White  v.  Poillon. 
25  Hun  (N.  Y.)  69. 


§    839]  PROCEEDINGS  ON  SURPLUS  MONEYS.  1207 

the  money  on  such  a  sale,  to  pay  over  the  surphis  moneys 
received  by  him,  an  attachment  may  be  issued  against  him, 
in  which  case  the  burden  of  proving  that  he  has  paid  such 
surplus  to  the  county  treasurer  wall  rest  upon  him.^°  Where, 
on  such  a  sale,  the  mortgagee  receives  the  money  and  holds 
the  surplus,  he  is  regarded  as  a  trustee  for  the  person  or 
persons  entitled  thereto,  and  is  liable  to  a  subsequent  judg- 
ment creditor  for  the  balance  of  the  surplus,  after  deducting 
the  amount  due  upon  his  claim,  with  interest  from  the  time 
of  the  demand. ^^ 

§  839.  Character  of  surplus — Personal  or  real  prop- 
erty.— The  proceeds  of  the  sale,  after  satisfying  the  mort- 
gage debt,  may  be  said  to  stand  in  the  place  of  the  equity  of 
redemption  to  those  who  hold  the  title  to  such  equity  of  re- 
demption or  a  lien  upon  it.^^  Whether  such  surplus  is  to  be 
treated  as  personal  property  or  real  estate  will  depend  upon 
the  circumstances  of  each  case.  It  is  thought  that  when  such 
surplus  is  to  be  distributed  among  persons  having  liens  upon 
the  land,  it  is  for  that  purpose  to  be  treated  as  real  estate, 
and  to  be  governed  by  the  rules  relating  to  such  property.^' 
But  where  the  rights  and  claims  of  the  persons  among  whom 
the  money  is  to  be  divided  are  fixed  and  determined,  the 
money  in  their  hands  is  to  be  treated  as  personal  property ;  ^* 
surplus  moneys  claimed  by  virtue  of  a  trust  are  not  realty, 
but  personalty. ^^ 

Where  a  person  dies  siezed  of  real  estate  incumbered  by 

50  See    Matter    of    Silvernail,    45  Ch.    (N.  Y.)    119,  7  Am.  Dec.  478; 

Hun  (N.  Y.)  575.  Servis  v.  Dorn,  76  N.  J.  Eq.  241,  76 

^^  Russell  V.  Duflon,  4  Lans.   (N.  Atl.  246.    See  post,  §  840. 

Y.)  399.  54  See  Cope  v.  Wheeler,  41  N.  Y. 

52  Habersham  v.  Bond,  2  Ga.  Dec.  303. 
46.     See  Clarkson  v.  Skidmore,  46  55  American   Life   Ins.    &    Trust 
N.  Y.  297;  Snyder  v.  Stafford,   11  Co.  v.   VanEpps,  56  N.  Y.  601,  re- 
Paige  Ch.  (N.  Y.)  71.  versing  14  Abb.  (N.  Y.)   Pr.  N.  S. 

^  Moses  V.  Murgatroyd,  1  Johns.  253. 


1208  MORTGAGE    FORECLOSURES.  [§    840 

a  mortgage  which  is  thereafter  foreclosed,  the  surplus  arising 
on  the  sale  is  to  be  regarded  as  realty,  and  passes  to  his  heirs  ®^ 
or  devisees  and  not  to  his  administrator ;  "  his  administrator 
cannot  maintain  an  action  to  recover  the  surplus,  although 
the  mortgage  may  provide  that  the  surplus  shall  be  paid  to 
the  mortgagor,  his  executors  or  administrators.*^  But  the  rule 
is  different  where  the  mortgagor,  or  other  owner  of  the  equity 
of  redemption,  dies  after  the  sale  of  the  mortgaged  premises 
has  been  made.*^ 

§  840.  Surplus  personalty,  where  land  so  converted 
under  will. — Although  the  real  estate  may  be  charged 
with  the  payment  of  debts  by  mortgage  or  otherwise,  and  is 
regarded  as  thereby  converted  into  personal  property  so  far 
as  may  be  necessary  to  pay  such  debts,  yet  in  the  absence  of  a 
distinct  intention  to  convert  it,  the  whole  of  the  real  estate 
will  not  be  deemed  converted  into  personalty.®" 

The  surplus  moneys  arising   from  the   sale  of   such   real 

56  But  see  Price  v.  Blankenship,  Swift,    8    Beav.    374,-    Bourne    v. 

144  Mo.  203,  45  S.  W.  1123.  Bourne,  2  Hare,  39;  Biggs  v.  An- 

^"^  Matter  of  Knapp,  25  Misc.  133,  drews,  5  Sim.  424;  Wright  v.  Rose, 

54   N.   Y.   Supp.   727;   Kitchens  v.  2  Sim.  &  S.  323;  Van   v.    Barnett, 

Jones,  87  Ark.  502,  19  L.R.A.(N.S.)  19  Ves.  102;  Brown  v.  Bigg,  7  Ves. 

722,,  128  Am.  St.  Rep.  36,  113  S.  W.  279;  Policy  v.  Seymour,  2  Younge 

29.  &  Coll.  708.    See  post,  §  860. 

^^  Dunning   v.    Ocean   Nat  Bank,  ^^  Denham  v.    Cornell,  67    N.   Y. 

61  N.  Y.  497,    19    Am.    Rep.    293;  SS6;  Hortonv.  McCoy,  A7 '^.Y. 21; 

American  Life  Ins.  &  Trust  Co.  v.  Hoey  v.  Kinney,  10  Abb.    (N.  Y.) 

VanEps,  56  N.  Y.  601 ;  Sweezy  v.  Pr.  400 ;  Foreman    v.    Foreman,    7 

Thayer,    11    N.    Y.    Leg.    Obs.    50;  Barb.     (N.    Y.)    215;    Sweezey    v. 

Graham  v.  Dickinson,  3  Barb.  Ch.  Willis,     1     Bradf.     (N.     Y.)     495;. 

(N.  Y.)  169,  173;  Fliess  v.  Buckley,  Sweezy  v.  Thayer,  1  Duer  (N.  Y.) 

22  Hun  (N.  Y.)  551,  556;  Roup  v.  286;   Bogert  v.   Furman,   10    Paige 

Bradner,  19  Hun  (N.  Y.)  517;  Cox  Ch.   (N.  Y.)  496;  Davison    v.    De- 

V.  McBurney,2  Sandf.  (N.  Y.)  561;  Freest,  3  Sandf.  Ch.   (N.  Y.)  456; 

Beard  v.  Smith,  71  Ala.  568;  Kin-  Cox  v.  McBurney,  2  Sandf.  (N.  Y.) 

ner  v.   Walsh,  44  Mo.  69;   Chaffee  561;  Smith  v.  Smith,  13  Mich.  258. 
V.  Franklin,  11  R.  I.  S79;Freedman's  ^'^  Bourne  v.  Bourne,  2  Hare,  35, 

Savings  &  Trust  So.  v.  Earle,  110  38. 
U.  S.  718,  28  L.  ed.  304;  Matson  v. 


§    841]  PROCEEDINGS  ON  SURPLUS  MONEYS.  1209 

estate  stand  in  the  place  of  the  land  for  the  purpose  of  distri- 
bution among  the  persons  having  vested  interests  therein  or 
Hens  thereon."  The  devisees  of  a  mortgagor  are  therefore 
entitled  to  the  whole  of  the  surplus  moneys  arising  on  a  fore- 
closure sale,  subject  to  the  claims  which  have  become  liens 
thereon.®^  The  fact  that  the  surplus  arising  from  such  sale 
is  sometimes  entrusted  to  the  surrogate  for  distribution,  will 
not  render  it  personal  property. ^^ 

§  841.  Massachusetts  doctrine. — The  doctrine  estab- 
lished in  Massachusetts  varies  somewhat  from  that  stated 
above.  It  is  said  in  Varnum  v.  Meserve,®^  where  a  mortgage 
contains  a  power  of  sale,  providing  that  the  surplus  of  the 
proceeds  after  the  payment  of  the  debt  and  the  expenses  shall 
be  paid  to  the  mortgagor,  his  executors  or  administrators, 
that  his  executors  may  maintain  an  action  for  the  surplus, 
although  the  mortgagor  by  will  devised  the  land  to  others. 
The  court  recognizes  the  doctrine  that  the  surplus  under  such 
circumstances  is  usually  real  estate,  but  claims  that  the  legal 
title  to  the  money  is  vested  in  the  executor  or  administrator 
by  force  of  the  contract  with  the  mortgagee,  and  that  when 
he  collects  it,  he  holds  it  in  trust  for  the  heirs  or  devisees,  as 
the  case  may  be. 

This  case  was  criticised  by  the  court  of  appeals  of  New 

6^  See   Clarkson  v.   Skidmore,  46  court  will  apply  the  money  accord- 

N.  Y.  297 ;  Livingston  v.  Mildrum,  ing  to  the  rights  of  the  parties  as 

19  N.  Y.  440;  Matthews  v.  Duryee,  they  existed  before  the  sale.    Astor 

45  Barb.   (N.  Y.)  69,  aff'd  4  Keyes  v.  Miller,  2  Paige  Ch.   (N.  Y.)   68, 

(N.  Y.)   525;  Averill  v.  Loucks,  6  76. 

Barb.     (N.  Y.)     471;     Blydcnburgh  ^^  Dclaficld  v.  IVhite,  43  Hun  (N. 

V.    Northrup,    13    How.     (N.    Y.)  Y.)  641,  7  N.  Y.  St.  Rep.  301. 

Pr.     289;     Fliess    v.     Buckley,    22  ^^  Dunning  v.   Ocean  Nat.  Bank, 

Hun    (N.    Y.)    551;    aff'd    90    N.  61  N.  Y.  497,  19  Am.  Rep.  293. 

Y.    286;    Elmendorf   v.    Lockwood,  6*90  Mass.    (8   Allen),    158,    160. 

4  Lans.    (N.    Y.)    396;    Snyder    v.  See    Newhall    v.    Lynn    Five    Cent 

Stafford,  11  Paige  Ch.   (N.  Y.)  71.  Sav.   Bank.    101    Mass.   428,   433,   3 

The  rights  of   parties   in  the  fund  Am.  Rep.  387. 
are  not  affected  by  the  sale,  and  the 


1210  MORTGAGE    FORECLOSURES.  [§    842 

York  in  Dunning  v.  Ocean  National  Bank,®^  where  it  is  said 
to  be  in  conflict  with  Wright  v.  Rose,^®  in  which  case  the 
contract  was  also  made  to  pay  the  mortgagor,  his  "executors 
or  administrators."  The  court  held  that  "the  true  construc- 
tion of  these  words  undoubtedly  is  that  the  promise  is  to  pay 
the  executors  or  administrators  whenever  it  might  have  been 
paid  to  the  mortgagor,  as  for  example  when  the  land  was 
sold  in  his  life-time." 

§  842.  Character  of  surplus  belonging  to  infant. — It  is 
provided  by  statute  in  New  York,®'  that  "a  sale  of  real  prop- 
erty, or  of  an  interest  in  real  property,  other  than  a  possibility 
of  reverter,  belonging  to  an  infant  or  incompetent  person, 
made  as  prescribed  by  the  statute,  does  not  give  to  the  infant 
or  incompetent  person,  any  other  or  greater  interest  in  the 
proceeds  of  the  sale,  than  he  had  in  the  property  or  interest 
sold.  These  proceeds  are  deemed  property  of  the  same  na- 
ture, as  the  estate  or  interest  sold,  until  the  infant  arrives  at 
full  age,  or  the  incompetency  is  removed."  ®® 

§  843.  Who  entitled  to  apply  for  surplus. — All  liens 
upon  or  interests  in  the  mortgaged  premises,  which  are  in- 
ferior to  the  mortgage  sought  to  be  foreclosed,  are  transferred 
to  the  surplus  on  the  sale  of  the  premises;®^  consequently, 

65  61  N.  Y.  497,  505,  19  Am.  Rep.  Foreman,  7  Barb.  (N.  Y.)  215; 
293.  Cutting  v.  Lincoln,  9  Abb.  (N.  Y.) 

66  2  Sim.  &  S.  323.  Pr.  N.  S.  436;  Shumway  v.  Cooper, 

67  N.  Y.  Code  Civ.  Proc.  §  2359.       16  Barb.    (N.  Y.)   556;  Denham  v. 
This  statute  is  said  to  be  merely       Cornell,  7  Hun  (N.  Y.)  662;  In  re 

an  enactment  of  the  chancery  rule  Thomas,   1  Hun   (N.  Y.)   473,  4  T. 

as  applies  to  sales  of  such  property;  &  C.   (N.  Y.)  410;  Davison  v.  De- 

the   impress   of   realty    which    was  Freest,  3  Sandf.  Ch.    (N.  Y.)   456, 

formerly  given  by  the  rule  of  the  464;    State    v.    Hirons,    1     Houst. 

court  of  chancery,  is  now  given  by  (Del.)   252;  Nelson  v.  Hagerstown 

the  statute.     Forman  v.  Marsh,   11  Bank,     27     Md.     51;      Oberle     v. 

N.  Y.  544,  548;  Shumway  v.  Cooper,  Lerch,  18  N.  J.  Eq.   (3  C.  E.  Gr.) 

16  Barb.  (N.  Y.)  556.  346;  Jones  v.  Edwards,  8  Jones  (N. 

68  See  Forman  v.  Marsh,  11  N.  Y.  C.)  L.  ZZ6. 

544,     548,     reversing    Foreman     v.  69  Pagan   v.   People's  Sav.    &   L. 


§  843] 


PROCEEDINGS  ON  SURPLUS  MONEYS. 


1211 


all  persons  owning  such  liens  or  interests  are  entitled  to  par- 
ticipate in  the  distribution  of  the  surplus.'"    The  plaintiff  not 


Assoc.  55  Minn.  437,  57  N.  W.  142 ; 
Servis  v.  Dorn,  76  N.  J.  Eq.  241, 
76  Atl.  246;  Cincinnati  Cordage  & 
Paper  Co.  v.  Dodson  Printers'  Sup- 
ply Co.  131  Ga.  516,  62  S.  E.  810; 
Knowles  v.  Sullivan,  182  Mass.  318, 
65  N.  E.  389.  See  Matthews  v. 
Diiryee,  45  Barb.  (N.  Y.)  69,  3  Abb. 
App.  Dec.  (N.  Y.)  220,  17  Abb.  (N. 
Y.)  Pr.  256;  AveriU  v.  Loucks,  6 
Barb.  (N.  Y.)  470;  Blydenburgh  v. 
Northrop,  13  How.  (N.  Y.)  Pr.  289. 

'"  Field  V.  Hawxhurst,  9  How. 
(N.  Y.)  Pr.  75;  Brown  v.  Campbell, 
100  Cal.  635,  38  Am.  St.  Rep.  314, 
35  Pac.  433 ;  Kauffman  v.  Peacock, 
115  111.  212,  3  N.  E.  749,  Clapp 
V.  Hadley,  141  Ind.  28,  50  Am. 
St.  Rep.  308.  39  N.  E.  504; 
Denegre  v.  Musket,  46  La.  An.  90, 
14  So.  348;  Kent  v.  Melius,  69 
Mich.  71,  yj  N.  W.  48;  Pagan  v. 
People's  Sav.  &  L.  Asso.  55  Minn. 
437,  57  N.  W.  142;  Brown  v. 
Crookston  Agricultural  Assoc.  34 
Minn.  545,  26  N.  W.  907;  Hooper  v. 
Castetter,  45  Neb.  67.  63  N.  W.  135 ; 
Blass  V.  Terry,  87  Hun  (N.  Y.) 
563,  34  N.  Y.  Supp.  475;  Quacken- 
bush  V.  O'Hare,  61  Hun  (N.  Y.) 
388,  40  N.  Y.  S.  R.  797,  16  N.  Y. 
Supp.  33,  aff'd  in  129  N.  Y.  485,  29 
N.  E.  958,  42  N.  Y.  S.  R.  104; 
Page  v.  Thomas,  43  Ohio  St.  38,  54 
Am.  Rep.  788,  1  N.  E.  79;  Stewart 
V.  Grace,  42  S.  C.  500,  20  S.  E. 
411;  Farmers'  Loan  &  T.  Co.  v. 
Oregon  &  W.  T.  R.  Co.  67  Fed. 
404. 

Six  month  clause  for  presenting 
claims — Abrogation  by  courts. — 
The  supreme  court  of  the  United 
States  say  that  where  the  decree  of 


sale  of  mortgaged  property  pro- 
vides for  the  payment  of  demands 
by  the  purchaser,  and  that  demands 
which  are  not  presented  within  six 
months  after  the  confirmation  of 
the  sale  shall  be  barred,  and  the  de- 
cree of  confirmation  contains  no 
such  limitation  as  to  time,  a  claim- 
ant may  present  his  demands  after 
the  lapse  of  more  than  six  months. 
Olcott  V.  Headrick,  141  U.  S.  543, 
35  L.  ed.  851,  12  Sup.  Ct.  Rep.  81. 

Also  that  where  a  fund  arising 
from  a  sale  of  property  is  in  court, 
the  court  may  abrogate  the  limi- 
tation of  six  months  provided  by 
the  degree  of  sale  for  the  presen- 
tation of  claims,  and  permit  a 
creditor  to  prove  his  debt  after  the 
expiration  of  said  six  months.    Id. 

A  statute  providing  that  railroad 
mortgages  shall  be  invalid  against 
debts  contracted  in  carrying  on  the 
business  of  the  company,  has  been 
said  not  to  give  a  prior  lien  to  the 
latter's  claims,  but  merely  prevents 
those  claiming  a  prior  lien  under  a 
mortgage  from  setting  it  up  to  de- 
feat such  debts.  Partners  L.  &  T. 
Co.  V.  Vicksburg  &  M.  R.  Co.  33 
Fed.  778. 

Same — Current  debts  of  a  com- 
pany in  operation  of  its  current 
business  are  chargeable  upon  the 
current  income,  as  against  holders 
of  mortgage  bonds  of  the  com- 
pany, whether  they  accrued  before 
or  after  appointment  of  a  receiver. 
Farmers'  L.  &•  T .  Co.  v.  Vicksburg 
&  M.  R.  Co.  Zl  Fed.  778. 

The  supreme  court  of  the  United 
States  say,  in  St.  Louis,  A.  &  T.  H. 
R.  Co.  V.  Cleveland,  C,  C.  &  L  R. 


1212 


MORTGAGE    FORECLOSURES. 


[§   843 


being  permitted,  in  most  cases,  to  allege  all  of  his  demands  in 
his  complaint,  is  entitled  to  an  order  of  reference  to  enable 
him  to  assert  and  prove  a  lien  junior  to  the  mortgage  fore- 
closed;'^ otherwise  such  demands  as  are  junior  to  the  mort- 
gage foreclosed  and  are  not  alleged  in  the  complaint,  would  be 
cut  off  unless  the  sale  was  made  subject  to  them^^ 

The  owner  of  a  lien  who  was  not  made  a  party  to  the  suit 
and  whose  lien  was  not  cut  off  by  the  foreclosure,  has  no 
right  to  share  in  the  surplus  arising  from  the  proceeds  of  the 
sale.'^  Consequently,  a  person  whose  claim  upon  the  property 
is  prior  to  the  mortgage  foreclosed,  has  no  claim  upon  or 
right   to  the   surplus ;  '*  and  a   senior   mortgagee,   or   other 


Co.  125  U.  S.  658,  31  L.  ed.  832, 
8  Sup.  Ct.  Rep.  1011,  that  mortgage 
securities  upon  which  current  earn- 
ings of  an  insolvent  railroad  com- 
pany are  applied  before  current  ex- 
penses are  paid,  are  chargeable  in 
equity  with  restoration  of  the  fund 
so  misapplied. 

A  lessee  applying  the  earnings  of 
the  road  on  mortgage  bonds,  leav- 
ing the  rent  unpaid,  the  equity  of 
the  lessor,  if  it  exists,  is  against  the 
holder  of  such  first-mortgage  bonds, 
and  not  against  the  proceeds  on 
foreclosure  sale  of  the  railroad.  St. 
Louis,  A.  &  T.  H.  R.  Co.  v.  Cleve- 
land, C,  C.  &  I.  R.  Co.  125  U.  S. 
658,  31  L.  ed.  832,  8  Sup.  Ct.  Rep. 
1011. 

And  where  a  lessor  receives,  in 
payment  of  rent,  more  than  the  en- 
tire net  earnings  of  the  property, 
has  no  equitable  ground  for  pay- 
ment of  the  amount  due  for  rent 
out  of  the  fund  arising  from  fore- 
closure sale,  in  preference  to  prior 
mortgages.  St.  Louis,  A.  &  T.  H. 
R.  Co.  V.  Cleveland,  C,  C  &■  L  R. 
Co.  US  U.  S.  658,  31  L.  ed.  832,  8 
Sup.  Ct.  Rep.   1011.     It  is  thought 


that  to  sustain  the  claim  of  an 
intervener  to  share  in  the  proceeds 
of  a  railroad  mortgage  upon  cou- 
pons which  he  has  paid  to  the 
holder,  such  payment  must  have 
been  made  upon  a  distinct  under- 
standing with  the  holders  of  the 
bonds  to  which  such  coupons  be- 
longed, that  they  were  purchased 
and  not  discharged.  Farmers'  Loan 
&  T.  Co.  V.  Oregon  &  W.  T.  R. 
Co.  67  Fed.  404. 

''I  Mutual  Life  Ins.  Co.  v.  Trucht- 
nicht,  3  Abb.   (N.  Y.)  N.  C.  135. 

''^Homeopathic  Mut.  Life  Ins. 
Co.  V.  Sixbury,  17  Hun  (N.  Y.) 
424.  See  Wheeler  v.  VanKuren,  1 
Barb.  Ch.  (N.  Y.)  490;  Roosevelt 
V.  Elithorp,  10  Paige  Ch.  (N.  Y.) 
415 ;  Tower  v.  White,  10  Paige  Ch. 
(N.  Y.)  395. 

'^^  See  Emigrant  Industrial  Sav. 
Bank  v.  Goldman,  75  N.  Y.  127; 
Bache  v.  Doscher,  67  N.  Y.  429; 
Root  V.  Wheeler,  12  Abb.  (N.  Y.) 
Pr.  294;  Winslow  v.  McCall,  32 
Barb.  (N.  Y.)  241. 

7*  See  DeRuyfer  v.  St.  Peter's 
Church,  2  Barb.  Ch.  (N.  Y.)  555. 


§    844]  PROCEEDINGS  ON   SURPLUS   MONEYS.  1213 

person  claiming  the  rights  of  a  senior  mortgagee  by  subro- 
gation or  otherwise,  has  no  right  to  participate  in  the  surplus 
realized  from  a  sale  on  the  foreclosure  of  a  junior  mortgage.'^ 
In  the  absence  of  any  other  liens  or  claims,  the  surplus  aris- 
ing from  the  sale  of  mortgaged  premises  belongs  to  the  mort- 
gagor or  the  owner  of  the  equity  of  redemption ;  '^  but  in  those 
cases  where  there  has  been  a  transfer  of  title  by  a  mortgagor 
after  a  foreclosure  sale,  this  does  not  transfer  the  right  to  the 
surplus  arising  on  such  sale.'^'^  And  the  supreme  court  of 
Ghio.  in  the  case  of  Hubbard  v.  Elden,'*  say  that  where,  on  a 
sale  of  mortgaged  premises,  there  remains  in  the  hands  of  the 
sheriff  a  portion  of  the  proceeds,  and  disputed  claims  for  such 
balance  are  pending,  the  sheriff  and  his  bondsmen  are  liable 
for  his  failure  to  pay  the  same  to  the  rightful  claimant,  al- 
though not  demanded  until  after  his  term  expires. 

§  844.  Same — Assignee  for  benefit  of  creditors. — The 

court  of  chancery  of  New  Jersey,  in  the  case  of  Babbitt  v. 

"^^  Firestone    v.    State,    100    Ind.  gagee.    Mattel  v.  Conant,  156  Mass. 

226.  418,  31  N.  E.  487. 

"^^  Day  V.  New  Lots,  107    N.    Y.  The   supreme    court    of     Missis- 

148,  13  N.  E.  915 ;  Babbitt  v.  Black-  sippi,  in  the  case  of  Wooldridge  v. 

■well,  120  N.  C.  253,  26  S.  E.  817 ;  Bowmar,  64  Miss.  34,  8  So.  233,  say 

Bradbuni  v.  Roberts,  148  N.  C.  214,  that  where  the  real  debtor  conveyed 

61  S.  E.  617.    See  Mattel  v.  Coyiant,  land  to  an  accommodation  maker  of 

156  Mass.  418,  31  N.  E.  487;  Fagan  notes  for  his  benefit,  in  order  that 

V    People's    Sav.    &    L.    Asso.    55  a  mortgage  might  be  given  upon  it 

Minn.  437,  57  N.  W.   142;   Gair  v.  as   security    for   the   notes,   neither 

Tutfle,  49  Fed.  198.  he,  his  assignee   for  creditors,  nor 

Under  a  mortgage  providing  that  a  receiver  of  his  assets,  is  entitled. 
the  surplus  arising  from  fore-  on  account  of  notes  which  he  has 
closure  sale  be  paid  to  the  mort-  taken  up  and  retained  in  his  pos- 
gagor  or  his  assigns,  the  mortgagee  session,  on  foreclosure  of  the  mort- 
is liable  for  such  surplus  to  gage,  to  share  with  the  holder  of 
grantees  of  the  mortgagor  who  the  rest  of  the  notes  in  the  distri- 
were  owners  of  the  property  at  the  bution  of  the  proceeds, 
time  of  the  sale,  notwithstanding  "^^  Clyde  v.  Johnson,  4  N.  D.  92, 
they  are  strangers  to  the  contract  58  N.  W.  512. 
between  the   mortgagor  and  mort-  "^^  43  Ohio  St.  380,  2  N.  E.  434. 


1214  MORTGAGE    FORECLOSURES.  [§    845 

McDermott,'^  say  that  the  assignee  for  creditors  of  an  in- 
solvent mortgagor  of  a  hotel,  who,  in  furtherance  of  a  scheme 
for  making  the  hotel  furniture,  over  which  no  one  else  had 
any  control,  produce  a  revenue  by  its  use  in  connection  with 
the  real  estate,  makes  payments  to  be  applied  upon  the  mort- 
gage out  of  the  net  revenue  of  the  property  produced  by 
such  scheme,  is  not  entitled  to  surplus  moneys  arising  from 
foreclosure  of  the  mortgage,  although  such  payments  were 
not  applied  thereon,  where  such  amounts  were  in  fact  rental 
of  the  real  estate  and  not  all  of  the  rents  which  he  agreed  to 
pay,  since  he  is  under  no  obligation  to  see  that  such  rent 
is  applied  to  reduce  the  mortgage,  and  its  not  being  so  credit- 
ed does  not  affect  the  sum  realized  by  him  as  assignee. 

§  845.  Same — Dower  interest. — It  is  thought  that  a 
wife  joining  with  her  husband  in  execution  of  a  mortgage, 
on  sale  to  satisfy  the  mortgage,  loses  her  contingent  interest 
in  the  premises ;  and  an  excess  in  the  amount  realized  is  prop- 
erly applied  to  the  husband's  debts. 


so 


§  846.  Same — Grantee  or  assignee. — The  supreme 
court  of  New  York,  in  the  case  of  Blass  v.  Terry,*^  say  that 
the  grantee  of  an  undivided  half  of  land  who  assumes  in 
her  deed  payment  of  the  half  of  a  mortgage  thereon  is  en- 
titled to  the  benefit  of  half  the  proceeds  of  a  sale  of  the 
property  as  an  entirety  under  foreclosure,  in  reduction  of 
her  share  of  the  mortgage  debt.  But  the  Indiana  supreme 
court  have  held  that  an  assignee  of  an  equity  of  redemption 
in  premises  on  which  there  is  a  school-fund  mortgage,  has 
no  interest  in  the  surplus  realized  upon  a  sale  of  the  land, 
under  the  Indiana  statute,*^  providing  that  the  surplus  shall 

79  26  Atl.  (N.J.  Ch.)  889.  power  to  sell.     Kauffman    v.    Pea- 

BOKauffman  v.  Peacock,   115   111.  cock,  115  111.  212,  3  N.  E.  749. 

212.  3  N.  E.  749.    The  same  is  said  "87  Hun  (N.  Y.)  563.  34  N.  Y. 

to    be    true    of    the    surplus    in    the  Supp.  475. 

hands  of  a  trustee  vested  with  the  82  i^d  Rev.  Stat.  1881,  §  4394. 


§  847] 


PROCEEDINGS  ON  SURPLUS  MONEYS. 


1215 


be  paid  to  the  original  mortgagor,  "his  heirs  or  assignees," 
when  collected,  where  he  has  executed  an  irrevocable  power 
of  attorney,  coupled  with  an  interest,  empowering  the  agent 
to  sell  his  interest  in  the  land,  and  the  agent  has  sold  such  in- 
terest before  the  assignee  made  any  attempt  to  revoke  the 
power  of  attorney.^' 

§  847.  Same — Lessees    of    mortgaged    premises. — The 

supreme  court  of  New  York,  in  the  case  of  Larkin  v.  Mis- 
land,**  say  that  lessees  whose  right  of  occupation  is  destroyed 
by  foreclosure  have  no  claim  therefor  against  surplus  moneys, 
except  in  those  cases  where  the  annual  value  of  the  leasehold 
exceeds  the  rent.'* 


88  Bell  V.  Corbin,  136  Ind.  269,  36 
N.  E.  23. 

84  100  N.  Y.  212,  3  N.  E.  79. 

85  In  delivering  the  opinion  of  the 
court  in  this  case,  Judge  Finch 
says: 

"This  order  should  be  affirmed, 
solely  for  the  reason  that  Agnes 
Misland  did  not  show  the  value  of 
her  leasehold  estate  in  excess  of  the 
rents  reserved,  or  that  it  had  any 
such  value.  We  may  grant  that  the 
lease  which  she  produced  from 
Louisa  was  duly  delivered,  and  that 
there  was  possession  under  it,  and, 
so,  that  she  was  entitled  to  be  first 
paid  out  of  the  surplus  the  value  of 
her  leasehold ,  estate,  before  any 
part  of  such  surplus  should  go  to 
the  lessor  as  owner  of  the  equity  of 
redemption.  But  the  difficulty  re- 
mains that  there  is  no  sufficient 
proof  of  any  such  value,  and,  so.  no 
basis  for  an  award  to  the  lessee. 

"The  whole  subject  was  fully  dis- 
cussed in  Clarkson  v.  Skidmore. 
46  N.  Y.  301.  It  was  there  ex- 
plained that  the  value  of  the  lease- 


hold estate,  the  sum  lost  by  its  de- 
struction, is  what  it  is  worth  over 
and  above  the  rent  reserved.  If  its 
value  does  not  exceed  such  rents, 
no  loss  results  from  an  abridge- 
ment of  the  term.  The  occupation 
lost  and  the  rental  saved,  balance 
each  other.  But  if  the  estate  is 
worth  something  over  and  above 
the  rental,  that  excess  is  lost  by  the 
destruction  of  the  term.  In  this 
case  no  such  excess  of  value  was  in 
any  manner  established.  The 
amount  of  the  rent  reserved  was 
not  shown.  It  consisted  of  a  sum 
equal  to  the  interest  on  incum- 
brances, the  number  and  amount  of 
which  we  do  not  know,  and  to  the 
insurance  premiums,  taxes  and 
water-rents.  What  this  annual 
rental  in  money  amounted  to,  and 
how  it  compared  with  the  actual 
value  of  the  leasehold  estate,  is  un- 
disclosed, and  so  no  basis  existed 
for  estimating  a  possible  loss  re- 
sulting from  the  extinction  of  the 
lease  and  to  which  Agnes  was  en- 
titled  as   compensation   out   of   the 


1216 


MORTGAGE    FORECLOSURES. 


[§   848 


§  848.  Same  —  Judgment  creditors.  —  The  supreme 
court  of  Louisiana,  in  the  case  of  Denegre  v.  Mushet,®® 
hold  that  the  purchaser  at  a  foreclosure  sale  under  a  senior 
mortgage  has  the  right  to  retain  any  surplus  and  pay  it  over 
to  the  subordinate  mortgagees  upon  their  presenting  them- 
selves; and  a  judgment  creditor  has  no  right  upon  such  sur- 
plus entitling  him  to  call  other  creditors  holding  special  mort- 
gages into  court  for  the  purpose  of  a  distribution  thereof.^' 
It  is  said,  in  the  case  of  the  Central  Trust  Company  v.  Cin- 
cinnati, Jackson  &  Mackinaw  Railroad  Company,*^  that  judg- 
ments which,  under  a  reorganization  agreement  are  to  be  treat- 
ed as  first  mortgage  bonds,  and  taken  up  by  bonds  issued  by 
the  new  company,  are  equally  extinguished  with  the  old  bonds, 
and  not  entitled  to  share  in  distribution  of  a  surplus  upon 


surplus  realized.  The  only  fact 
shown  was  that  value  remained  in 
the  fee  over  and  above  the  incum- 
brances, as  indicated  by  the  result 
of  the  foreclosure  sale.  But  the 
case  already  cited  determines  that 
while  the  surplus  realized  may  be 
an  element  in  estimating  the  value 
of  the  leasehold,  yet  the  interest 
upon  such  surplus  is  not  that  value. 
It  in  no  respect  concludes  the 
lessee,  and  so  should  not  conclude 
the  lessor.  In  the  absence  of  proof 
to  the  contrary,  the  rents  reserved 
must  be  presumed  to  be  the  fair 
annual  value  of  the  use  of  the  land, 
and  that  the  fee  is  worth  more  than 
the  incumbrances,  as  shown  by  a 
foreclosure  sale,  does  not  rebut  or 
destroy  that  presumption,  for  the 
interest  upon  the  value  of  the  fee 
is  much  less  likely  to  measure  just- 
ly the  value  of  the  use  than  the 
rental  agreed  upon  by  the  parties  as 
the  fair  value  of  such  use." 

86  46  La.  An.  90,  14  So.  348. 

87  In  this  case  it  was  claimed  that 


the  proceedings  partook  of  the 
nature  of  a  concursus  under  the 
Louisiana  statute  (La.  Rev.  Stat.  § 
1942,  Code  Pr.  Art.  126),  and  re- 
sembles a  tabulation  of  distribu- 
tion to  which  oppositions  have  been 
filed,  which  are  open  to  every  ob- 
jection of  law  and  fact.  Bank  v. 
Turcaud,  40  La.  An.  149,  3  So.  538, 
Succession  of  Aaron,  11  La.  An. 
671;  Succession  of  Lerude,  11  La. 
An.  386.  The  court  declared  that 
it  was  "only  a  conflict  of  privilege 
between  creditors,"  the  statute  con- 
templates, or  which  authority  is 
conferred  upon  courts  to  classify 
"according  to  their  rank"  in  the 
summary  manner  pointed  out,  de- 
claring that  the  statute  does  not 
purport  to  give  the  courts  jurisdic- 
tion to  summarily  adjudge  the  va- 
lidity of  debts  which  are  secured 
by  privileges  or  mortgages,  and  by 
that  means  to  displace  one  and  ad- 
vance the  rank  of  another. 
88  58  Fed.  500. 


§    849]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1217 

mortgage  foreclosure  of  the  property  of  the  old  company, 
where  such  reorganization  agreement  contemplates  the  total 
extinguishment  of  the  old  bonds, 

§  849.  Same — Same — Attachment  creditors. — Lienors 
other  than  the  mortgagors  are  entitled  to  apply  for  and  share 
in  the  surplus.  Thus  it  is  held  that  a  valid  attachment  levied 
upon  the  equity  of  redemption  and  the  entire  interest  of  the 
debtor  in  lands  described  in  a  prior  trust  deed  or  mortgage, 
before  a  foreclosure  sale  thereunder,  becomes  a  lien  on  any 
surplus  proceeds  arising  from  such  sale;  and  such  surplus  is 
subject  to  be  applied,  upon  execution,  to  the  satisfaction  of 
judgment  in  favor  of  the  attaching  creditor.*^ 

§  850.  Same — Subsequent  lienors. — The  universal  rule 
is  that  upon  the  sale  of  land  subject  to  two  mortgages, 
under  the  first,  the  lien  of  the  second  is  transferred  from  the 
land  to  the  surplus  of  the  proceeds  after  satisfying  the  first 
mortgage ;  ^°  and  the  mortgagee  is  entitled  to  such  surplus  to 

^^  Brown  v.   Campbello,   100  Cal.  But  in  Oklahoma  this   rule  does 

635,  38  Am.   St.  Rep.  314,  35  Pac.  not  hold  where  the    junior    mort- 

433.  gagee  has  not  been  made  a  party 

9"  Fagan  v.  People's  Sav.  &  L.  to  the  foreclosure.  Horr  v.  Her- 
Assoc.  55  Minn.  437,  57  N.  W.  rington,  22  Okla.  590,  20  L.R.A. 
142;  Brown  v.  Crookston  Agri-  (N.  S.)  47,  98  Pac.  443. 
cultural  Assoc.  34  Minn.  545,  26  N.  Second  mortgagee  in  preference 
W.  907;  Robertson  v.  Brooks,  65  to  the  mortgagor,  is  entitled  to  re- 
Neb.  799,  91  N.  W.  709;  Jackson  v.  ceive  the  surphis  money  arising 
C  off  man,  110  Tenn.  271,  75  S.  W.  from  foreclosure  sale  under  a 
718.  See  Patton  v.  Thomson,  (Cal.)  prior  mortgage.  Brown  v.  Crooks- 
33  Pac.  97 ;  Clapp  v.  Hodley,  141  ton  Agri.  Asso.  34  Minn.  545,  26  N. 
Ind.  28,  50  Am.  St.  Rep.  308,  39  N.  W.  907. 

E.  504 ;  Ke>it  v.  Melius,  69  Mich.  71,  Bonds  issued  by  a  railroad  com- 

37  N.  W.  48;  Hooper  v.  Castetter,  pany  are  not  entitled  to  participate 

45  Neb.  67,  63  N.  W.  135;  Quacken-  in  a  surplus  arising  on  foreclosure 

hush  V.   O'Hare,  61   Hun    (N.   Y.)  of  one  division  of  the  road,  as  to  a 

388,  16  N.  Y.  Supp.  ZZ.  4  N.  Y.  S.  R.  deficiency  upon  the  sale  of  the  other 

797,  aff'd  129  N.  Y.  485,  29  N.  E.  division  under  the  mortgage  made 

598,  42  N.  Y.  S.  R.  104;  Stewart  v.  to  secure  such  bonds,  in  those  cases 

Grace,  42  S.  C.  500,  20  S.  E.  411.  w^here   the  bondholders   are   stock- 
Mortg.  Vol.  II.— 77. 


1218 


MORTGAGE    FORECLOSURES. 


[§  850 


the  extent  necessary  to  satisfy  his  mortgage.'^  although  by 
its  terms  his  debt  is  not  diie.®^  On  the  same  principle  the 
surplus  arising  from  a  sale  of  land  under  a  second  mortgage 


holders  of  the  old  road  and  have 
pooled  their  securities  for  the  pur- 
pose of  buying  the  road  and  re- 
organizing it,  and  have  agreed 
among  themselves  that  in  exchange 
for  their  old  securities  they  will  re- 
ceive securities  to  be  issued  by  the 
new  company,  with  the  intention 
that  the  old  bonds  should  be  con- 
sidered extinguished,  since  such 
agreement  when  consummated  oper- 
ates to  extinguish  the  bonds,  not 
only  as  between  the  parties  there- 
to, but  as  to  the  old  road  and  its 
other  creditors.  Central  Trust  Co. 
V.  Cincinnati,  J.  &  M.  R.  Co.  58, 
Fed.  500. 

In  California,  under  Code  of 
Civil  Proceedings,  §  957,  on  a  fore- 
closure sale  of  lands  to  a  junior 
mortgagee,  a  decree  of  foreclosure 
in  whose  fovor  on  his  cross-com- 
plaint for  any  excess  was  reversed 
because  his  cross-complaint  was  not 
served  on  his  mortgagors,  the  latter 
cannot  recover  from  the  junior 
mortgagee  the  excess  of  the  first 
proceeds  of  the  sale  over  the 
amount  of  the  first  mortgage  under 
which  the  sale  was  had,  where  the 
record  does  not  show  that  the 
excess  is  not  held  by  the  sheriff 
subject  to  the  order  of  the  mort- 
gagors. Pat  ton  v.  Thomson,  (Cal.) 
33  Pac.  97. 

In  Michigan  an  assignee  of  a 
second  mortgage  claiming  the  sur- 
plus under  a  prior  mortgage,  must 
show  that  he  purchased  in  good 
faith  for  value  the  interest  claimed 
by  him  in  the    mortgage,    without 


notice  of  its  invalidity.  Kent  v. 
Melius,  69  Mich.  71,  37  N.  W.  48. 

In  New  York  the  surplus  money 
arising  from  the  sale  of  mortgaged 
premises  under  foreclosure  must  be 
paid  to  the  holder  of  the  legal  title 
to  a  junior  mortgage,  although  an- 
other person  is  equitably  entitled  to 
a  transfer  thereof.  Quackenbush  v. 
O'Hare,  61  Hun  (N.  Y.)  388,  40 
N.  Y.  S.  R.  797,  16  N.  Y.  Supp.  23, 
aff'd  in  129  N.  Y.  485,  42  N.  Y.  S. 
R.  104,  29  N.  E.  958. 

The  mortgagee  of  an  individual 
member  of  a  firm  is  only  entitled  to 
the  surplus  after  payment  of  the 
partnership  debts.  Page  v.  Thomas, 
43  Ohio  St.  38,  54  Am.  Rep.  788,  1 
N.  E.  79. 

91  Milligan  v.  Gallen,  64  Neb.  561, 
90  M.  W.  541.  See  Moss  v.  Robert- 
son, 56  Neb.  774,  77  N.  W.  403; 
State  ex  rel.  Hadley  v.  Clapp,  147 
Ind.  244,  62  Am.  St.  Rep.  415,  46  N. 
E.  533 ;  Robertson  v.  Brooks,  65 
Neb.  799,  91  N.  W.  709;  Continental 
Ins.  Co.  v.  Reeve,  134  N.  Y.  Supp. 
78;  Stark  v.  Love.  128  Mo.  App.  24, 
106  S.  W.  8/ ;  Vogel  v.  Nachemson, 
137  App.  Div.  200,  121  N.  Y.  Supp. 
927.  See  also  Elsworth  v.  Woolsey, 
19  App.  Div.  385,  46  N.  Y.  Supp. 
486;  Union  Trust  Co.  v.  Electric 
Park  Amusement  Co.  168  Mich.  574, 
135  N.  W.  115.  But  see  Rochester 
Savings  Bank  v.  Whitmore,  25  App. 
Div.  491,  49  N.  Y.  Supp.  862;  Milmo 
National  Bank  v.  Rich,  16  Tex.  Civ. 
App.  363.  40  S.  W.  1032. 

92  Pagan  v.  People's  Sav.  &  L. 
Assoc.  55  Minn.  437,  57  N.  W.  142. 


§    851]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1219 

must  be  used  for  paying  junior  liens,  and  not  the  first  mort- 
gage, even  though  the  land  is  sold  for  its  full  value.^^ 

The  supreme  court  of  Indiana,  in  the  case  of  Clapp  v. 
Hadley,^  hold  that  a  mortgagee  in  a  second  mortgage,  who 
holds  a  certificate  of  purchase  of  a  foreclosure  sale  thereunder, 
at  which  he  bid  the  full  amount  of  principal,  interest  and 
costs,  is  entitled  to  a  lien  for  the  payment  of  the  debts  secured 
by  such  mortgage  upon  the  surplus  arising  from  a  subsequent 
sale  under  the  first  mortgage,  of  which  he  was  also  the  ownei , 
although  the  decrees  under  both  mortgages  were  obtained 
at  the  same  time,  and  no  provision  was  made  in  either  for 
the  distribution  of  the  surplus  moneys.  But  the  supreme  court 
of  Nebraska,  in  the  case  of  Hooper  v.  Castetter,^*  say  the 
holder  of  a  second  mortgage  on  land  becomes  the  purchaser 
on  the  foreclosure  of  his  mortgage,  to  which  action  the  holder 
of  the  first  mortgage  is  not  made  a  party,  is  not  entitled, 
as  against  the  mortgagor,  by  taking  an  assignment  of  the 
first  mortgage  after  obtaining  his  decree,  but  before  the  sale, 
to  a  decree  applying  the  surplus  proceeds  of  the  sale  towards 
the  liquidation  of  the  mortgage  purchased. 

§  851.  Same — Lienors  paying  money  to  protect  their 
liens. — It  is  a  well-established  principle  that  where  a  lien- 
See  Windt  V.  Gilleran,  135  Cal.  94,  art  v.  Croce,  42  S.  C.  500,  20  S.  E. 
66  Pac.  970.  411. 

^3  Stewart  v.  Grace,  42  S.  C.  500,  But  the  receipt  by  a  third  mort- 

20  S.  E.  411.  gagee,   with   full  knowledge  of   all 

Second    mortgagee    acts     at     his  the  facts,  of  a  part  of  the  surplus 

peril   in  paying   the   surplus   to   the  moneys  arising  from  a  sale  by  the 

first  mortgagee,  under  a  mortgage  second  mortgagee,  and  paid  over  by 

containing     a     power    of    sale    and  him  to  the  first  mortgagee,  releases 

authorizing  the  mortgagee    to    pay  the  second  mortgagee  from  liability 

over  the  surplus  to  the  holders  of  for  the  amount  so  received,  but  no 

subsequent  liens  who  give  express  more.     Stewart  v.  Grace,  42  S.   C. 

written  notice  of  the  liens,  and  if  500,  20  S.  E.  411. 

none   is  given,  to  the   mortgagors,  9*  141    Ind.   28,   50  Am.    St.   Rep. 

where   he   has   notice    of    a    third  308,  39  N.  E.  504. 

mortgage,      although      no     written  9^  53  jsj    \Y.  135. 
notice  of  the  lien  is  given.    Stew- 


1220 


MORTGAGE    FORECLOSURES. 


[§  852 


holder  is  compelled  to  expend  money  for  the  purpose  of  pro- 
tecting his  lien  against  a  paramount  claim,  he  is  entitled  to 
be  subrogated  to  the  right  of  the  person  holding  such  para- 
mount claim,  and  where  the  mortgaged  property  is  sold  to 
satisfy  another  paramount  lien  or  claim,  the  lienor  thus  ex- 
pending money  will  have  his  right  to  be  reimbursed  for  such 
necessary  expenditure  transferred  from  the  property  to  the 
surplus,  if  any,  arising  from  the  sale  of  the  premises.^^ 

§  852.  Same — Where   foreclosure   under   power. — The 

rules  governing  the  right  to  and  distribution  of  the  surplus 
arising  on  a  foreclosure  sale  under  a  power  contained  in  a 
trust  deed  or  mortgage,  are  the  same  as  upon  foreclosure  by 
action.^'  Consequently,  a  mortgagee  who  has  sold  the  mort- 
gaged premises  under  a  power  of  sale,  cannot  successfully 
set  up  the  defense  of  liability  to  a  second  mortgagee,  in  an 
action  by  the  mortgagor  or  his  executors  for  the  surplus, 
unless  he  has  discharged  the  liability  by  payment  of  the 
money  to  such  mortgagee. ^^  It  has  been  said  that  in  those 
cases  where  the  undertaking  on  the  mortgagee's  part  is  to 
account  to  the  mortgagors  and  their  heirs  and  assigns  for 
surplus  money  arising  from  sale  under  power  in  the  mort- 


9^  Thus,  it  has  been  said  by  the 
circuit  court  of  the  United  States 
for  the  northern  district  of  Ohio 
that  moneys  paid  by  a  reorganiza- 
tion committee  of  the  bondholders 
and  stockholders  of  a  railroad,  who 
purchase  the  road  upon  foreclosure 
sale,  for  the  purpose  of  clearing  off 
liens  upon  the  railroad  prior  to 
their  bonds,  are  not  a  debt  which 
is  entitled  to  participate  in  surplus 
moneys  arising  from  the  sale  of  the 
property  subject  to  the  lien  there- 
for, but  the  payment  thereof  is  a 
payment  which  extinguishes  it,  and 
not  a  purchase  leaving  the  debt 
alive  in  the  hands  of  the  new  com- 


pany. Central  Trust  Co.  v.  Cincin- 
nati, J.  &  M.  R.  Co.  58  Fed.  500. 

See  Union  Trust  Co.  v.  Electric 
Park  Amusement  Co.  168  Mich. 
574,  135  N.  W.  115.  See  also 
Noeker  v.  Howry,  119  Mich.  626, 
78  N.  W.  669. 

^"^  See  Perkins  v.  Stewart,  75 
Minn.  21,  77  N.  W.  434;  Price  v. 
Blankinship,  144  Mo.  203,  45  S.  W. 
1123;  Bobbitt  v.  Blackwell,  120  N. 
C.  253,  26  S.  E.  817;  Jones  v. 
Shepard,  145  Mo.  App.  470,  122  S. 
W.  764. 

98  Mortgage  Co.  v.  Inzer,  98  Ala, 
608,  13  So.  507. 


§    853]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1221 

gage,  it  is  an  undertaking  to  pay  mortgagors  jointly ;  and  an 
action  to  recover  the  surplus  must  be  joint.^^  And  the  mort- 
gagee need  not  examine  the  records  to  see  if  there  are  incum- 
brances subsequent  to  the  mortgage.^  And  where  land  has 
been  mortgaged  by  one  not  holding  the  title,  the  beneficiaries 
ni}'  affirm  the  sale  by  the  mortgagee  and  recover  the  pro- 
ceeds in  his  hands. ^ 

A  sale  under  a  trust  deed,  to  be  valid,  must  be  made  in 
strict  accordance  with  the  terms  of  such  power. ^  Hence, 
an  agreement  and  assurance  made  by  a  trustee  in  a  trust 
deed,  that  the  surplus  may  be  applied  upon  debts  of  the 
mortgagor,  when  the  trust  deed  expressly  provides  that  it 
shall  be  paid  to  the  mortgagor,  is  not  valid;  and  such  agree- 
ment is  not  ratified  by  the  mortgagor's  bringing  suit  against 
the  purchaser  for  the  surplus.* 

§  853.  Same — Same — Notice  of  sale. — On  a  fore- 
closure under  a  power,  the  notice  of  sale  should  accurately 
state  the  amount  due  on  the  mortgage,  and  for  the  payment  of 
which  the  premises  are  to  be  sold.  Should  the  mortgagee,  in 
his  notice  of  sale,  claim  to  be  due  an  amount  greater  than 
that  allowed  by  the  terms  of  the  mortgage  or  trust  deed, 
and  bid  in  the  mortgage  for  the  amount  claimed  to  be  due, 
he  will  be  liable  to  the  mortgagor  or  his  assignee  for  the 
excess  for  which  the  premises  sold  over  the  amount  actually 
due.^  And  it  is  said  by  the  supreme  court  of  Minnesota  that, 
where  there  is  a  mistake  in  the  computation  of  the  interest 
due  on  a  note  secured  by  mortgage,  and  a  larger  sum  is  claimed 
in  the  notice  of  sale  than  is  lawfully  due,  and  the  premises 

^^Clapp    V.   Pawtucket   Inst,    for  Re  Champion  (C.    A.)    1    Ch.    101. 

Sav.  15  R.  I.  489,  2  Am.  St.  Rep.  See  post,  §  983. 

915,  8  Atl.  697.  3  See  ante  §  318. 

1  Norman  v.  Hallscy,  132  N.  C.  6,  *  Gair  v.  Tuttle,  49  Fed.  198.  See 
43  S.  E.  473.  post,  §  893. 

2  The  trustee  entitled  to  retain  ex-  5  Pagan  v.  People's  Sav.  &  L. 
penses  of  sale  and  any  payments  Asso.  55  Minn.  437,  57  N.  W.  142. 
made  for  the  purpose  of  the  trust.  See  post,  §  932. 


1222  MORTGAGE    FORECLOSURES.  [§    854 

are  bid  in  by  the  mortgagee,  for  the  sum  so  claimed,  in  good 
faith,  believing  himself  to  be  bidding  for  the  sum  actually 
due,  and  the  mortgagor  is  attempting  to  recover,  by  action, 
as  surplus,  the  excessive  interest  so  computed  and  included 
in  the  bid,  and  the  premises  are  of  less  value  than  the  sum 
actually  and  legally  due,  equitable  relief  may  be  granted  the 
mortgagee,  and  a  resale  ordered." 

§  854.  Protecting  claims  to  surplus. — Where  surplus 
moneys  from  the  sale  of  mortgaged  premises  are  brought 
into  court,  they  take  the  place  of  the  land,  and  creditors 
having  liens  upon  or  interests  in  the  land  subsequent  to  the 
decree  under  which  the  sale  is  made,  have  the  same  claim 
upon  the  surplus  moneys  which  they  had  upon  the  land  pre- 
vious to  the  decreed  The  rights  and  equities  of  junior  claim- 
ants are  before  the  court,  and  are  as  much  the  object  of  its 
care  as  those  of  the  owner  of  the  mortgage  foreclosed,  and 
the  surplus  moneys  cannot  be  disposed  of  until  such  claim- 
ants are  brought  into  court.' 

^  Lane  v.  Holmes.  55  Minn.  379,  ing  the  mortgage.    Lane  v.  Holmes, 

43  Am.  St.  Rep.  508,  57  N.  W.  132.  55  Minn.  379,  43  Am.  St.  Rep.  508, 

Value  of  the  use  of    the    mort-  57  N.  W.  132. 

gaged    premises,    upon    ordering    a  '  Matthews   v.   Duryee,   45    Barb, 

resale  of  premises  sold  under  mort-  (N.  Y.)  69,  3  Abb.  App.  Dec.   (N. 

gage  foreclosure  to  the  mortgagee  Y.)  220,  17  Abb.   (N.  Y.)   Pr.  256; 

for  a  sum  in  excess  of  the  amount  Averill  v.  Loucks,  6  Barb.   (N.  Y.) 

actually  due,  under  a  mistake  in  the  470;  Wiggin  v.  Heywood,  118  Mass. 

computation    of    interest   by   which  514. 

the  bid  was    so    increased,    for   the  The   supreme  court  of    Pennsyl- 

time    they    are    occupied    after   the  vania,  in  the  case  of  Lynn  v.  Free- 

foreclosure   and   the   expiration    of  mansburg    Building    &    Loan    As- 

the    time    for    redemption,    by    the  sociation,  117  Pa.  St.   1,  2  Am.  St. 

mortgagee  in  actual  possession  with  Rep.  639,  11  Atl.  537,  20  W.  N.  C. 

the  actual  or  implied  assent  of  the  185,   say  that  in  scire  facias  on  a 

mortgagor,  need  not  be  tendered  to  mortgage  to  a  building  association, 

the  latter  before  such  resale,  since  fines  under  an  invalid  by-law  must 

the  mortgagee,  being  in  possession  be  applied  on  the  amount  due. 

after  condition  broken,  is  rightfully  8  Deforest   v.    Farley,   62    N.    Y. 

there,  and  the  mortgagor  cou!d  not  628 ;  Livingston  v.  Mildrum,  19  N. 

recover  possession  without  satisfy-  Y.  440;   Tatar  v.  Adams,  20  Hun 


855] 


PROCEEDINGS    ON    SURPLUS    MONEYS. 


1223 


In  ordering  a  sale  of  the  mortgaged  premises  for  the  satis- 
faction of  the  debt,  the  court  should  take  into  consideration  all 
the  liens  which  exist  subsequent  to  that  of  the  mortgage  fore- 
closed; as  all  such  liens  are  cut  off  by  the  foreclosure,  they 
should  be  protected  by  the  court  in  the  decree  of  sale;  other- 
wise they  will  be  lost.  In  such  cases  the  court  should  not 
content  itself  with  simply  giving  such  directions  in  the  decree 
as  will  certainly  produce  payment  of  the  plaintiff's  lien,  with- 
out regard  to  the  effect  such  directions  may  have  upon  those 
liens  which  are  subsequent,  but  it  should  make  such  a  decree 
as  will  fully  protect  the  rights  and  preserve  the  equities  of  all, 
at  the  same  time  maintaining  the  priority  of  the  plaintiff's 
claim.' 

§  855.  Adjusting  equities. — A  court  will  adjust  the 
equities  between  subsequent  lienors,  whenever  they  can  be 
established  without  regard  to  the  manner  in  which  the  sur- 
plus is  brought  into  court.^"  Thus,  where  different  parcels  of 
mortgaged  premises  are  encumbered  by  separate  judgments 
or  mortgages,  the  equitable  rules  regulating  the  marshaling 
of  assets  will  control  the  proceedings  to  determine  their  prior- 
ities and  to  distribute  the  surplus." 


<N.  Y.)  131;  Beekman  v.  Gibbs,  8 
Paige  Ch.  (N.  Y.)  511.  See  Union 
Dime  Savings  Bank  v.  Osley,  4 
Hun  (N.  Y.)  657;  Miller  v.  Dooley, 
1  Law  Bull.  50;  Montague  v. 
Marunda,  71  Neb.  805,  99  N.  W. 
653. 

^Livingston  v.  Mildrum,  19  N. 
Y.  440.  See  Snyder  v.  Stafford,  11 
Paige  Ch.  (N.  Y.)  71. 

"^^  Oppenheimer  v.  Walker,  3  Hun 
(N.  Y.)  30,  5  T.  &  C.  (N.  Y.)  325; 
Snyder  V.  Stafford,  11  Paige  Ch. 
(N.  Y.)  71;  James  v.  Hubbart,  1 
Paige  Ch.  (N.  Y.)  228.  234. 

11  New  York  Life  Ins.  &  Trust 
Co.  V.  Vanderbilt,  12  Abb.  (N.  Y.) 


Pr.  458;  Savings  Bank  of  Utica  v. 
Wood,  17  Hun  (N.  Y.)  133; 
Oppenheimer  v.  Walker,  3  Hun  (N. 
Y.)  30,  5  T.  &  C.  (N.  Y.)  325. 
See  Patty  v.  Pease,  8  Paige  Ch.  (N. 
Y.)  277,  35  Am.  Dec.  683;  Skeel  v. 
Sparker,  8  Paige  Ch.  (N.  Y.)  182; 
Guion  V.  Knapp,  6  Paige  Ch.  (N. 
Y.)  35,  29  Am.  Dec.  741 ;  Jenkins  v. 
Freyer,  4  Paige  Ch.  (N.  Y.)  53; 
Iglchart  v.  Crane,  42  111.  261 ;  Shep- 
erd  V.  Adams,  32  Me.  63;  Holden  v. 
Pike,  24  Me.  427 ;  Chase  v.  Wood- 
bury, 60  Mass.  (6  Cush.)  143;  Allen 
V.  Clark,  34  Mass.  (17  Pick.)  47; 
Wikoff  V.  Davis,  4  N.  J.  Eq.  (3  H. 
W.  Gr.)  224;  Shannon  v.  Marselis. 


1224  MORTGAGE    FORECLOSURES.  [§    855 

The  general  rule  is  that,  in  foreclosure  proceedings,  the 
amount  due  on  the  mortgage,  and  the  rights  of  the  parties, 
are  to  be  determined  as  of  the  date  of  the  judgment  or  de- 
cree,^^  but  the  proceeds  must  be  applied  to  the  payment  of 
mortgage  claims  according  to  their  respective  ranks,  to  be 
ascertained  by  the  dates  of  registry.^^  But  where  a  note  has 
been  transferred,  together  with  a  mortgage  given  to  secure  it 
and  other  notes,  the  transferee  is  entitled  to  priority  in  the 
distribution  of  the  proceeds  of  a  sale  under  the  mortgage.^* 
And  it  is  thought  that  the  assignment  to  different  persons 
of  two  promissory  notes  coming  due  at  different  times,  se- 
cured by  a  mortgage,  entitles  each  of  the  assignees  to  a  pro 
rata  application  of  the  proceeds  of  the  mortgaged  premises, 
where  the  sum  realized  from  their  sale  is  insufficient  to  pay 
the  notes  in  full.^* 

But  in  those  cases  where  a  mortgage  is  given  to  secure 
several  notes  maturing  at  different  times,  some  of  which  are 
otherwise  secured,  the  proceeds  arising  from  a  sale  of  the 
mortgaged  premises  will  be  first  applied  in  payment  of  notes 
which  are  not  otherwise  secured,  although  such  notes  are 
not  the  first  to  mature,  where  the  payee  and  mortgagee  in- 
dorsed the  two  notes  first  maturing  as  an  additional  security 
in  order  to  induce  the  assignee  to  purchase  them.^°  And  one 
who  transfers  a  note  secured  by  mortgage,  under  an  agreement 
to  pay  the  transferrer  interest  due  at  the  time  of  transfer, 

1  N.  J.  Eq.   (1  Saxt.)  413;  Brown  "^^  Aberdeen   First   Nat.   Bank   v. 

V.  Simmons,  44  Vt.  475;  Lyman  v.  Andrews,  7  Wash.  261,  38  Am.  St. 

Lyman,  32  Vt.  79,  76  Am.  Dec.  151;  Rep.   885,    34    Pac.    913;    Lovell   v. 

Jones   V.    Myrick,    8    Gratt.    (Va.)  Craig,  136  U.  S.  130,  34  L.  ed.  372, 

179;  Henkle  v.  Allstadt,    4    Gratt.  10  Sup.  Ct.  Rep.  1024. 

(Va.)  284;  Herbert's  Case,  3  Coke,  An    hypothecary    action    lies    in 

\\b.     Compare  Parkman  v.   Welch,  Louisiana  to   enforce    such    claim. 

36  Mass.  (19  Pick.)  231.  Lovell  v.  Cragin,  136  U.  S.  130,  34 

12  Clark  V.  Clark,  62  N.  H.  267.  L.  ed.  372,  10  Sup.  Ct.  Rep.  1024. 

^^  Reusch  V.  Keenan,  42  La.  An.  ^^  Robinson  v.   Waddcll,  53  Kan. 

14,  7  So.  589.     See  post,  §  856.  402,  36  Pac.  730. 

1*  Miller     v.      Washington     Sav. 
Bank,  5  Wash.  200,  31  Pac.  712. 


§    855]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1225 

"when  the  same  should  be  collected  on  said  note  and  mort- 
gage," without  any  other  qualification,  is  entitled  to  receive 
the  interest  out  of  the  first  moneys,  realized  from  foreclosure 
sale,  after  the  payment  of  the  costs  and  expenses  thereof." 

It  has  been  said  by  the  supreme  court  of  Michigan,  in 
the  case  of  High  v.  American  Wheel  Company,^^  that  one  of 
several  persons  whose  claims  for  both  existing  indebtedness 
and  liability  as  indorser  are  secured  by  a  trust  mortgage,  but 
who  has  received  a  part  of  the  amount  due  on  one  claim 
from  other  sources,  is  not  obliged  to  deduct  the  amount  so 
received  from  the  amount  originally  secured  in  order  to  ob- 
tain the  amount  on  which  he  is  entitled  to  a  dividend  on  each 
claim,  where  the  property  is  insufficient  to  pay  all  the  claims 
in  full,  but  he  is  entitled  to  a  dividend  on  each  claim  for  its 
total  amount  as  secured  by  the  mortgage,  subject  to  the  proviso 
that  this  should  not  exceed  the  amount  actually  remaining 
due  on  such  claims. 

The  supreme  court  of  Virginia,  in  the  case  of  Mosley  v. 
Johnson,^^  say  that  where  the  trustees  under  a  trust  deed, 
sell  without  authority  some  of  the  trust  property,  they  may 
be  compelled  to  pay  into  court  the  value  of  the  property 
sold,  out  of  which  the  creditors  must  first  be  paid ;  and  the 
surplus,  if  any,  will  be  returned  to  the  debtor  or  to  his  repre- 
sentatives. 

The  supreme  court  of  New  York,  in  the  case  of  Shaw  v. 
Saranac  Horse  Shoe  Nail  Company, ^°  say  that  the  purchasers 
at  their  par  value  of  the  bonds  of  a  corporation  issued  for 
the  purpose  of  raising  money  to  pay  its  floating  debts,  and 
which  are  authorized  to  be  sold  at  a  price  not  less  than  par, 
have  an  equity  in  the  proceeds  realized  from  the  foreclosure 
of  the  mortgage  given  to  secure  the  bonds,  superior  to  that 
of  a  stockholder  who  has  agreed  to  pay  the  debts  of  the  cor- 

^"^Haber  v.  Brown,  101  Cal.  445,  19  86  Va.  429,  10  S.  E.  425,  13  Va. 

35  Pac.  1035.  L.  J.  872. 

19  37  Mich.  502,  56  N.  W.  927,  21  2073  Hun    (N.   Y.)    7,  29  N.  Y. 

L.R.A.  822.  Supp.  254,  60  N.  Y.  S.  R.  804. 


1226  MORTGAGE    FORECLOSURES.  [§    856 

poration  after  its  insolvency  has  been  recognized,  and  has 
taken  assignments  of  bonds  that  had  been  given  as  security 
for  past-due  notes,  instead  of  being  sold  for  their  par  value 
as  provided  for,  for  the  purpose  of  contribution  from  the 
other  stockholders. 

The  chancery  court  of  New  Jersey,  in  the  case  of  Point 
Breeze  Ferry  and  Improvement  Company  v.  Bragaw,^^  say 
that  on  the  foreclosure  of  a  mortgage  given  by  a  riparian 
owner,  covering  the  shore  and  including  the  land  lying  un- 
der water  in  front  of  the  upland,  which  was  afterwards  leased 
from  the  state  and  improved  by  filling  below  high-water 
mark,  the  lessee  has  a  higher  title  and  superior  right  to  be 
first  paid  the  price  of  the  lease  and  the  value  of  the  improve- 
ments.** 

§  856.  Liens  to  be  paid  in  order  of  priority  in  time. — 

All  incumbrances  on  mortgaged  premises  inferior  to  the  mort- 
gage on  which  the  sale  is  based,  must  be  paid  in  the  order 
of  time  in  which  they  respectively  became  liens.*^ 

A  mortgage  will  be  preferred  to  a  judgment  lien  in  the  dis- 
tribution of  the  surplus,  where,  under  a  contract  of  sale,  the 
deed  was  left  in  escrow  until  a  certain  amount  should  be  paid, 
and  a  mortgage  given  to  secure  the  remaining  indebtedness, 
and  the  judgment  was  recovered  against  the  purchaser  prior 
to  the  delivery  of  the  deed  and  the  execution  of  the  mortgage, 
because  the  equitable  lien  which  the  mortgage  secured  was 

2147  N.  J.  Eq.   (2  Dick.)  298,  20  62  N.  H.  267.    See  People  v.  Bergen, 

Atl.  967.  53  N.  Y.  404;  Peabody  v.  Roberts, 

22  As  to  rights  of  riparian  mort-  47  Barb.  (N.  Y.)  91;  Freeman  v. 
gage  in  strip  of  land  under  water  Schroeder,  43  Barb.  (N.  Y.)  618; 
reclaimed  after  execution  of  mort-  Averill  v.  Loucks,  6  Barb.  (N.  Y.) 
gage.     See   ante,   §   291.  470;  Durling  v.  Stillwell,  74  N.  J. 

23  McKinstry  v.  Mennn,  cited  in  Eq.  697,  69  Atl.  978.  As  to  priority 
3  Johns.  Ch.  (N.  Y).  466;  Haines  of  the  liens  on  surplus  moneys  on 
V.  Beach,  3  Johns.  Ch.  (N.  Y.)  459.  foreclosure,  see  Sa^'ings  Bank  of 
Re  Ferguson's  Estate  (Mo.)  27  S.  Utica  v.  PVood,  17  Hun  (N.  Y.) 
W.  513;  Reusch  v.  Keenan,  42  La.  133. 

An.  419,  7  So.  589;  Clark  v.  Clark, 


§    856]  PROCEEDINGS    ON    SURPLUS    MOXEYS.  1227 

prior  in  fact  to  the  judgment.^*  A  judgment  will  not  be  pre- 
ferred to  a  prior  unrecorded  mortgage  given  to  secure  future 
advances  or  liabilities,  unless  there  has  been  a  fraudulent  in- 
tention on  the  part  of  the  mortgagee  in  withholding  his  mort- 
gage from  record." 

But  the  supreme  court  of  Florida,  in  Edwards  v.  Thom,^® 
say  that  a  bona  fide  mortgagee  who  has  been  made  a  party  de- 
fendant with  the  mortgagor  to  a  bill  filed  to  foreclose  a  duly 
recorded  prior  mortgage,  and  has  become  the  purchaser  at  the 
sale  made  under  a  decree  in  such  a  suit,  is  entitled  to  priority 
of  payment  out  of  the  excess  of  the  proceeds  of  sale,  as  against 
a  mortgage  executed  before  his,  but  not  legally  recorded, 
and  of  which  he  had  no  notice  when  he  took  his  own  mort- 
gage. 

And  it  has  been  said  that  where  land  held  by  a  purchaser 
in  a  foreclosure  of  a  junior  mortgage  was  foreclosed  under 
one  of  two  senior  mortgages  of  equal  priority,  the  applica- 
tion of  the  balance  of  the  proceeds,  after  satisfaction  of  the 
mortgage  foreclosed,  to  the  other  mortgage,  on  special  execu- 
tion, was  an  irregularity  of  which  the  purchaser  under  the 
junior  mortgage  did  not  complain.^' 

In  those  cases  where  a  mortgage  is  given  to  secure  several 
notes,  but  contains  no  stipulation  as  to  the  order  in  which 
the  notes  should  be  paid,  and  there  is  no  agreement  as  to 
such  order,  there  can  be  no  priority  of  rights  in  favor  of 
different  assignees  of  such  notes,  but  they  are  entitled  to 
participate  ratably  in  the  fund  derived  from  the  security.^' 
And  one  who  has  advanced  money  to  redeem  property  from 
an  execution  and  a  decree  foreclosing  a  mortgage  which  has 
become  absolute,  and  conveyed  the  title  obtained  to  the  mort- 

^^  Cook  V.  Kraft,  3  Lans.  (N.Y.)  ^^  Stanbrough      v.      Daniels,      77 

512,  41  How.   (N.  Y.)    Pr.  279,  60  Iowa.  561,  42  N.  W.  443. 

Barb.    (N.  Y.)   410.  ^^  Penzel  v.  Brookmire,    51    Ark. 

25  Thomas  v.  Kelsey,  30  Barb.  (N.  105,  14  Am.  St.  Rep.  23,  10  S.  W. 
Y.)  268.  15. 

26  25  Fla.  222,  5  So.  707. 


1228  MORTGAGE    FORECLOSURES.  [§    857 

gagor  under  an  agreement  that  the  property  shall  remain  as 
security  for  the  whole  sum  advanced,  is  entitled  to  be  repaid 
in  excess  of  moneys  advanced  over  the  amount  of  the  two 
liens  as  against  the  mortgagees  whose  rights  are  inferior  there- 
to, since  they  would  have  been  entirely  cut  off  and  must  rely 
on  the  conveyance  to  the  mortgagor,  and  in  relying  thereon 
must  take  it  subject  to  the  agreement  upon  Vk^hich  it  was 
made.^^ 

In  Louisiana  it  is  held  that  in  executory  process  to  enforce 
a  special  mortgage,  a  plaintiff  holding  a  legal  mortgage  upon 
half  of  the  property  covered  by  the  special  mortgage  cannot 
require  the  proceeds  to  be  distributed  so  as  also  to  satisfy  the 
general  or  legal  mortgage.^'' 

In  Pennsylvania  it  is  held  that  under  the  statute  ^^  the  lien 
given  a  widow  upon  lands  assigned  to  one  of  the  heirs  in 
partition  of  her  husband's  estate,  extends  only  so  far  as  to 
secure  the  sum  accrued  to  her,  and  does  not  affect  the  life 
estate  to  which  she  was  previously  entitled;  and  arrearages 
remaining  unpaid  at  her  death  can  be  paid  only  out  of  the 
surplus  resulting  from  the  sale  of  the  land  upon  a  foreclosure 
of  a  mortgage  given  by  such  heir  to  secure  her  life  estate  and 
the  interest  of  the  other  heirs  after  her  death,  and  not  from  the 
proceeds  payable  to  such  heirs.^^ 

§  857.  Questions    of    priority — How    determined. — In 

New  York,  where  a  surplus  arises  upon  the  foreclosure  of  a 
first  mortgage  in  a  county  court,  the  claims  of  junior  mort- 
gagees and  judgment  creditors  must  be  litigated  before  a 
referee  appointed  in  the  foreclosure  by  the  same  court;  an 
action  for*  that  purpose  cannot  be  maintained  in  the  supreme 
court.^^     Where  there  is  a  surplus  arising  from  the  sale  of 

^9  Johnson  v.   Valido  Marble  Co.  P.)  1  Pa.  Dist.  Rep.  704,  11  Pa.  Co. 

64  Vt.  337,  25  Atl.  441.  Ct.  Rep.  609. 

^^Dodds  V.   Lanaux,  45  La.   An  ^^  Fliess  v.  Buckley,  90  N.  Y.  286, 

287,  12  So.  345.  affirming  24  Hun    (N.  Y.)   514,  22 

31  Pa.  Act,  March  29,  1832,  41.  Hun  (N.  Y.)  551, 

^^ Hagenman  v.  Esterly,    (Pa.  C. 


§    857]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1229 

mortgaged  premises,  such  surplus  may,  in  the  absence  of  con- 
testing creditors,  be  applied  directly  to  the  payment  of  another 
debt  owing  by  the  mortgagor  to  the  assignee  of  the  mortgage 
and  secured  upon  said  premises.^*  And  where  there  are  other 
claimants,  the  plaintiff  will  have  the  same  right  to  present  and 
establish  a  claim  to  the  surplus  as  a  defendant  to  the  fore- 
closure or  any  other  person. ^^ 

Where  the  demands  of  the  plaintiff,  in  addition  to  the  claim 
on  his  mortgage,  are  junior  to  such  mortgage,  they  should  be 
set  out  in  the  complaint,  so  that  they  may  be  litigated  and  dis- 
posed of  by  the  decree  of  foreclosure.^^  The  sale  of  the 
property  cannot  be  made  subject  to  subsequent  liens  which 
the  plaintiff  may  have  against  it.^' 

It  has  been  said  that  an  insolvent  indorser  of  promissory 
notes  secured  by  a  mortgage  which  is  insufficient  to  pay  them 
in  full,  is  not  entitled  to  share  in  the  distribution  of  the  pro- 
ceeds of  the  mortgage  on  account  of  a  portion  of  such  notes, 
which  it  had  transferred  as  collateral  security,  and  had  again 
become  entitled  to  receive  because  of  the  repayment  of  the 
debt  secured.^^  And  the  debts  of  a  corporation  for  the  salaries 
of  its  officers,  are  not  entitled  to  priority  of  payment  out  of 

3*  Bcekman's     Fire     Ins.    Co.    v.  86  Tower  v.   White,  10  Paige  Ch. 

First  M.  E.  Church  of  New  York.  (N.  Y.)  395.     See  Wheeler  v.  Van 

29  Barb.  (N.  Y.)  658.  18  How.  (N.  Kuren,  1   Barb.  Ch.    (N.    Y.)    490 

Y.)  Pr.  431.  The  Homeopathic  Mutual  Life  Ins. 

^^Field  V.  Hawxhurst,    9    How.  Co.  v.  Sixbury,  17  Hun  (N.  Y.)  424. 

(N.  Y.)  Pr.  75;  Mutual  Ins.  Co.  v.  ^^  Roosevelt  v.  Elithorp,  10  Paige 

Tnichtnicht,  3  Abb.  (N.  Y.)   N.  C  Ch.  (N.  Y.)  415;  The  Homeopathic 

135.    Thus,  where  a  mortgagee  sold  Mutual  Life  Ins.  Co.  v.  Sixhury,  17 

under  the  statute  and  had  a  surplus  Hun  (N.  Y.)  424. 

in  his   hands,  and  the  mortgagor's  ^^  New  York  Fourth  Nat.  Bank's 

grantee  sued  for  it,  it  was  held  that  Appeal,  123  Pa.  St.  473,  10  Am.  St. 

the  fact  that  the  former  had  a  judg-  Rep.    538,    16    Atl.    779,    46    Phila. 

ment   lien   upon  the  land   equal  to  Leg.  Int.  220,  19  Pitts.  L.  J.  N.  S. 

the    surplus,    was    a    sufficient    de-  295,  23  W.  N.  C.  55,   17  Wash.  L. 

fense.     Eddy   v.   Smith,    13   Wend.  Rep.  392. 
(N.  Y.)  488. 


1230  MORTGAGE    FORECLOSURES.  [§    858 

the  proceeds  of  the  mortgaged  property  of  the  corporation 
over  the  Hens  of  the  mortgagees.'^ 

§  858.  Claims  must  be  liens  on  mortgaged  premises. — 

To  enable  a  creditor  to  enforce  his  claim  to  the  surplus  moneys 
he  must  establish  a  lien  on  the  mortgaged  premises.  The 
surplus  moneys  arising  from  a  sale  on  foreclosure  take  the 
place  of  the  land  for  the  purpose  of  distribution  among  the 
persons  having  claims  thereto.***  A  simple  contract  creditor 
cannot  claim  any  portion  of  the  fund;  *^  claims,  however  just, 
which  have  not  been  perfected  into  liens,  under  which  the 
property  could  be  sold  on  execution,  cannot  be  taken  into  ac- 
count by  the  referee.'*^  The  general  legal  liens  of  the  judgment 
creditors  of  a  mortgagor,  however,  cannot,  in  equity,  prevail 
against  prior  equitable  claims  upon  the  mortgaged  premises.** 
The  inchoate  rights  of  mechanics  and  material-men,  under 
the  statute  giving  them  a  lien,  seem  to  be  claims  of  such  a 
nature,  however,  that,  although  not  established  by  judgment, 
they  are  entitled  to  be  considered  by  the  referee  on  an  ap- 
plication for  the  surplus,  and  to  share  in  the  distribution 
thereof.** 

'9  Stafford  v.  Blum,  7  Tex.  Civ.  ning  v.  Ocean  Nat.  Bank,  61  N.  Y. 

App.  283,  27  S.  W.  12.  497,  19  Am.  Rep.  293. 

^  Clark  son  v.  Skidmore,  46  N.  Y.  '^  H  listed  v.  Dakin,  17  Abb.    (N. 

297;  Livingston  v.  Mildrum,  19  N.  Y.)  Pr.  137;  King  v.  West,  10  How. 

Y.    440;    Matthews   v.    Duryee,    45  (N.  Y.)  Pr.  ZZi.     See  Mutual  Life 

Barb.  (N.  Y.)  69,  aff'd  4  Keyes  (N.  Ins.  Co.  v.  Bowen,  47  Barb.  (N.  Y.) 

Y.)  525;  Averill  v.  Loucks,  6  Barb.  618. 

(N.     Y.)      471;     Blydenburgh     v.  ^^  Sweet  v.  Jacocks,  6  Paige  Ch. 

Northrop,    13    How.    (N.    Y.)     Pr.  (N.    Y.)    355,    31    Am.    Dec.    252; 

289;  Fliess  v.  Buckley,  22  Hun  (N.  Arnold  v.  Patrick,  6  Paige  Ch.  N. 

Y.)    551,    affirmed    90    N.    Y.    286;  Y.)    310;    White    v.    Carpenter,    2 

Elmendorf   v.    Lockwood,    4   Lans.  Paige  Ch.  (N.  Y.)  217; /m  re //ow^, 

(N.    Y.)    396;    Snyder  v.   Stafford,  1   Paige  Ch.    (N.  Y.)    125,   19  Am. 

11  Paige  Ch.  (N.  Y.)  71.  Dec.  395. 

^^Delafield  V.  White,  19  Ahh.  (N.  ^^  Livingston   v.   Mildrum,    19   N. 

Y.)   N.  C.  104.     See  People  e.v  rel.  Y.  440.     See  post,  §  886. 
Short  V.  Bacon,  99  N.  Y.  275 ;  Dun- 


§    860]  PROCEEDINGS    ON    SURPLUS    MONEYS,  1231 

§  859.  Equitable  distribution — Claims  liens  on  two 
funds. — In  the  distribution  of  surplus  moneys  arising  on 
the  sale  of  mortgaged  premises,  a  prior  general  lien  thereon 
will  be  preferred  to  a  subsequent  specific  lien,  especially  if  the 
holder  of  the  former  has  no  other  fund  to  resort  to  and  the 
owner  of  the  specific  lien  has.  This  rule  is  based  upon  the 
well  settled  principle  of  equity  that  wdiere  one  creditor  has 
a  lien  upon  two  funds,  and  another  creditor  has  a  lien  upon 
only  one  of  those  funds,  the  latter  has  a  right  to  require  the 
former  to  exhaust  his  remedies  against  the  fund  on  which  he 
alone  has  a  lien  before  resorting  to  the  other  fund.** 

§  860.  Distribution  of  surplus  —  Mortgagor  de- 
ceased.— Where,  after  the  death  of  a  mortgagor,  an  action 
is  brought  to  foreclose  a  mortgage  w^hich  accrued  during  his 
life-time,  and  letters  testamentary  or  of  administration  were 
issued  upon  his  estate  by  a  surrogate  within  four  years  prior 
to  the  sale,  the  New  York  Code  of  Civil  Procedure  *^  requires 
that  the  surplus  moneys  arising  from  such  sale  shall  be  paid 
into  the  surrogate's  court  from  which  the  letters  were  issued.*'' 

Where,  after  the  death  of  a  mortgagor,  an  action  is  com- 
menced to  foreclose  a  mortgage  on  his  real  estate,  in  which  a 
sale  is  had  in  accordance  with  a  decree  of  the  court,  the  sur- 
plus arising  on  the  sale  may  be  distributed  by  and  under  the 
direction  of  the  court  rendering  such  decree ;  *^  such  surplus 
should  be  distributed  ratably  among  all  the  general  and  judg- 
ment creditors  of  the  deceased  owner,  after  notice  to  them  and 

*5  Mechanics'  Bank  v.  Edwards,  1  of  this  section  of  the  Code  to  sales 

Barb.  (N.  Y.)  271,  2  Barb.  (N.  Y.)  where  the  foreclosure  is  conducted 

545,  6  N.  Y.  Leg.  Obs.  159.  by   an   action,  see   Loiicks  v.    Va)i- 

4«N.  Y.  Code  Civ.  Proc.  §§  2798,  Allen,  11  Abb.    (N.  Y.)    Pr.   N.   S. 

2799.  427;      German     Saznngs     Bank     v. 

*'  As  to  the  right  to  have  the  sur-  Sharer,  25  Hun  (N.  Y.)  409. 
plus  paid  into  the  surrogate's  court,  *"  German      Saz'ings      Bank      v. 

see  White  v.  Poillon,  25  Hun    (N.  SJmrer,  25  Hun  (N.  Y.)  409. 
Y.)  69;  and  as  to  the  applicability 


1232  MORTGAGE    FORECLOSURES.  [§    86i 

after  an  opportunity  has  been  given  them  to  be  heard.*'  But 
where  a  general  creditor,  who  had  no  notice  of  the  proceed- 
ings for  the  distribution  of  such  surphis,  until  after  the  order 
of  the  court  confirming  the  report  of  the  referee  as  to  the 
distribution  of  the  moneys  was  granted,  applies  to  be  made  a 
party  to  the  proceedings  and  for  an  opportunity  to  be  heard, 
his  application  will  be  granted.^" 

Where  a  mortgage  is  foreclosed  after  the  death  of  the  mort- 
gagor or  owner  of  the  equity  of  redemption,  the  surplus  money 
passes  to  his  heirs  or  devisees,  and  cannot  be  collected  by  his 
executor  or  administrator,  although  the  mortgage  may  con- 
tain an  agreement  to  pay  any  surplus  arising  on  such  sale  to 
the  mortgagor,  his  executors  or  administrators.^^  In  such  a 
case  creditors  must  be  paid  before  legatees,®^  because  debts  are 
in  the  nature  of  charges  upon  the  realty,  and  it  is  only  the  resi- 
due left  after  paying  such  debts  that  can  be  divided  among 
the  heirs  or  devisees. ^^ 

Specific  devisees  of  the  land  are  entitled  to  the  surplus 
moneys  arising  therefrom,  according  to  their  respective  liens 
under  the  will,  subject,  however,  to  the  assertion  of  other 
legal  claims  which  were  liens  upon  the  land  before  its  sale, 
or  which  have  equitably  become  prior  liens  upon  the  fund 
arising  therefrom  since  that  time.^* 

§  861.  Interest  of  life-tenant  in  surplus. — Upon  a  dis- 
tribution in  the  surrogate's  court  of  the  surplus  moneys  aris- 
ing from  a  sale  of  mortgaged  premises  on  foreclosure,  under 

^^Loucks   V.    VanAllen,    11    Abb.  ^^  Clark's  Case,  15  Abb.   (N.  Y.) 

(N.  Y.)  Pr.  N.  S.  427;  German  Sav.  Pr.  227. 

Bank  V.   Sharer,  25   Hun    (N.   Y.)  ^^  German  Sav.   Bank  v.  Sharer, 

409;  IVhite  v.  Poillon,  25  Hun  (N.  25  Hun    (N.  Y.)   409.     See  N.  Y. 

Y.)  69.  Code  Civ.  Proc.  §  2750. 

^^  German   Sav.   Bank  v.   Sharer,  ^^  Delafield  v.  IVhite,  19  Abb.  (N. 

25  Hun  (N.  Y.)  409.  Y.)   N.  C.  104.     See  People  ex  rel. 

51  See    Dunning    v.    Ocean    Nat.  Short  v.  Bacon,  99  N.  Y.  275;  Fliess 

Bank,  61   N.  Y.  497,   19  Am.   Rep.  v.  Buckley,  90  N.  Y.  286;  Dunning 

293,  aff'g  6  Lans.  (N.  Y.)  296.    See  v.  Ocean  Nat.  Bank,  61  N.  Y.  497, 

ante.  §  839  note  4.  19  Arn.  Rep.  293. 


§    862]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1233 

the  provisions  of  the  Code,"  where  there  is  a  life  estate  in 
the  land  sold,  the  fund  must  be  invested  under  the  direction 
of  the  court  and  the  income  thereof  paid  to  the  beneficiary 
until  the  determination  of  such  life  estate;  the  surrogate  can- 
not order  the  payment  of  a  gross  sum  in  lieu  thereof. ^^ 

But  in  the  Matter  of  Zahrt,"  it  was  said  that  where  land. 
in  which  a  widow,  by  the  terms  of  her  deceased  husband's 
will,  has  a  life  estate,  is  sold  upon  foreclosure,  leaving  a  sur- 
plus, it  rests  in  the  sound  discretion  of  the  court  whether  or 
not  she  shall  receive  a  gross  sum  for  the  value  of  such  estate, 
to  be  estimated  by  the  rules  of  practice  established  by  the  su- 
preme court.^® 

§  862.  Rights  of  prior  incumbrancers  not  parties. — A 

prior  claimant,  whatever  his  lien  may  be,  is  not  entitled  to 
participate  in  the  distribution  of  the  surplus,  unless  he  was  a 
party  to  the  foreclosure,®^  for  where  he  was  not  made  a  party, 
his  lien  will  not  be  affected,  nor  the  land  discharged  of  his  in- 
cumbrance, nor  the  lien  transferred  to  the  surplus  moneys. ®° 
Hence,  where  a  prior  incumbrancer  is  not  made  a  party  and 
his  lien  is  not  affected  by  the  foreclosure,  he  will  have  no 
claim  to  the  surplus,  unless  he  releases  to  the  purchaser  all 
future  claims  upon  the  equity  of  redemption."  It  is  said 
that  this  rule  is  not  technical,  but  is  founded  on  the  equitable 

65  N.  Y.  Code  Civ.  Proc.  §  2799.  32  Barb.   (N.  Y.)   241.     See  Koch 

^^  See  Zahrt's  Estate,  11  Abb.  (N.  v.  Purcell,  45  N.  Y.  Supr.  Ct.   (13 

Y.)    N.   C.  225,  citing  Arrowsmith  J.  &  S.)   162. 

V.  Arrowsmith,  8  Hun  (N.  Y.)  606;  ^^  Mutual  Life  Ins.  Co.  of  N.  Y. 

In  re  Igglesden,  3  Redf.    (N.  Y.)  v.  Truchtnicht,  3  Abb.   (N.  Y.)   N. 

375,  378.    See  Lewis  v.  Smith,  9  N.  C.    135 ;     Winslow    v.    McCall,    32 

Y.  502,  61  Am.  Dec.  706.  Barb.     (N.     Y.)     247;     Waller    v. 

5' 94  N.  Y.  605.  Harris.  7  Paige  Ch.    (N.  Y.)    167, 

58  N.  Y.  Supreme  Court  Rule  70.  aff'd  20  Wend.  (N.  Y.)  555,  32  Am. 

597^00;  V.  Wheeler,  12  Abb.    (N.  Dec.  590. 

Y.)    Pr.  294;  Mutual  Life  Ins.  Co.  ^'^  Emigrant     Industrial     Savings 

of  N.  Y.v.  Truchtnicht,  3  Ahh.  (N.  Bank  v.   Goldman,  75   N.   Y.    127; 

Y.)  N.  C.  135;  Winslow  v.  McCall,  Bache  v.  Doscher,  67  N.  Y.  429; 
Mortg.  Vol.  II.— 78. 


1234  MORTGAGE    FORECLOSURES.  [§    863 

principle  that  sncli  a  party  cannot  have  a  lien  on  both  the  land 
and  the  surplus. ^^ 

A  senior  mortgage  duly  recorded  being  notice  to  a  purchaser 
at  a  sale  on  a  foreclosure  of  a  junior  mortgage,  unless  he  is 
misled  by  the  conduct  of  the  mortgagee  or  his  agent,  which 
induces  him  to  conclude  that  the  property  is  sold  free  from 
the  prior  lien,  he  will  take  the  property  subject  to  such  prior 
mortgage.  If  at  the  time  of  the  sale  such  mortgage  has  been 
foreclosed,  the  mortgagee  may  place  his  execution  in  the 
hands  of  the  officers  making  the  sale,  and  cause  the  title  to 
be  sold  unincumbered,  and  claim  the  proceedings  arising  there- 
from, according  to  the  date  of  his  lien.®^ 

§  863.  Liens  attaching  pendente  lite. — It  is  said  in 
Koch  V.  Purcell,^^  that  one  who  takes  a  mortgage  after  a  lis 
pendens  has  been  filed,  will  have  a  right  to  be  heard  on  the 
reference  for  the  distribution  of  the  surplus,  although  he  was 
not  made  a  party  to  the  foreclosure.  And  it  has  been  held  that 
the  surplus  remaining  after  the  payment  of  the  mortgage  debt, 
may,  on  application,  be  paid  to  an  incumbrancer  not  a  party 
to  the  suit,  if  it  appears  that  he  is,  in  equity,  entitled  to  re- 
ceive it.^^ 

Incumbrancers,  and  persons  acquiring  other  interests  in  the 
mortgaged  premises  pendente  lite,  need  not  be  made  parties 
to  the  foreclosure,  because  their  interests  in  the  subject  matter 
of  the  suit  will  be  bound  and  concluded  by  the  decree.^® 
If  the  liens  of  such  persons  are  not  presented  and  shown  to 
exist,  the  surplus  may  be  distributed  without  notice  to  them; 
where  their  liens  are  presented  in  proper  form,  they  will  be 

Root  V.  Wheeler,  12  Abb.   (N.  Y.)  6*45   N.   Y.   Supr.   Ct.    (13  J.   & 

Pr.    294;    Winslow   v.    McCall,    32  S.)   162. 

Barb.   (N.  Y.)  241.  ^^  Ellis  v.  Southwell,  29  111.  549. 

62  Mutual  Life  Ins.  Co.  of  N.  Y.  ^6  Cook  v.  Mancius,  5  Johns.  Ch. 

V.  Truchtnicht,  3  Abb.   (N.  Y.)   N.  (N.  Y.)  89;  Darling  v.  Osborne,  51 

C.  135.  Vt.   158.     See  Harrington  v.  Slade, 

^^  Roberts  y.  Hinson,  77  Ga.  5S9,  22    Barb.     (N.    Y.)     161;    People's 

2  S.  E.  752.  Bank   v.   Hamilton   Manuf.   Co.    10 


§    864]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1235 

entitled  to  notice  of  the  proceedings  to  distribute  the  surpkis, 
and  their  rights  will  be  protected  by  the  court.^' 

§  864. .  Equitable  priorities  between  subsequent  mort- 
gagees.— Where  there  are  several  liens  upon  the  mort- 
gaged premises,  the  surplus  money  is  to  be  applied  to  their 
discharge  in  the  order  of  their  priority,^*  and,  presumptively, 
the  mortgage  first  recorded  is  the  prior  lien.®^  This  presump- 
tion, however,  may  be  overcome  by  proof  that  the  mortgage 
first  recorded,  by  verbal  agreement  between  the  mortgagor 
and  the  mortgagee,  is  not  to  become  operative  until  the  whole 
consideration  is  paid.'° 

An  agreement  between  a  mortgagee  and  a  mortgagor  that 
the  mortgage  shall  be  second  in  time  to  another  mortgage  on 
the  same  premises  will,  if  such  agreement  is  made  prior  to  the 
delivery  of  the  mortgage,  be  binding  upon  the  parties  as  well 
as  upon  an  assignee  of  the  mortgagee,'^^  because,  as  between 


Paige  Ch.    (N.  Y.)   481;  Sedgwick  gage  securing  the  $221.56  should  be 

V.  Cleveland,  7  Paige  Ch.   (N.  Y.)  the  first  lien  on  the  premises.    This 

287.  mortgage  was  subsequently  assigned 

^"^  Cook  V.  Mancius,  5  Johns.  Ch.  by  the  mortgagee  to  the  defendant, 

(N.  Y.)   89.     See   N.   Y.   Supreme  and  was  foreclosed  under  the  stat- 

Court  Rule  64.  ute.     Upon  the  sale  of  the  premises 

^^  Ave  rill  v.  Loucks,  6  Barb.  (N.  on  Jan.  5,  1850,  they  were  struck  off 

Y.)  470.    See  ante,  §§  856.  857.'  to  M.  for  $431.50,  a  sum  larger  than 

69  Freeman  v.  Scliroeder,  43  Harb.  the  amount  due  upon  the  mortgage, 

(N.  Y.)  618,  29  How.   (N.  Y.)   Pr.  together    with    the    costs    of    fore- 

263.  closure.      The   court   held   that   the 

''^  Where    a    plaintiff   on    Dec.   4,  defendant  was  entitled  to  have  the 

1846.  executed  two  mortgages  at  the  mortgage   for  $86.23   first   satisfied 

same    time    on   the    same    piece    of  out  of  the  surplus  moneys,  and  that 

property,   for   the  purchase   money,  ihe  plaintiff  was  entitled  only  to  the 

one    to    secure   $221.56,    payable    in  balance  remaining  after  paying  that 

nine  equal  annual  installments,  and  mortgage,  with  interest.     Barber  v. 

the   other   $86.23,   payable   in   three  Cary,  11  Barb.   (N.  Y.)  549. 

equal  annual   installments,  the   first  "^^  Freeman  v.  Scliroeder.  43  Barb, 

installment  to  become  due  Dec.  4,  (N.  Y.)  618,  29  How.  (N.  Y.)   Pr. 

1856,  it  was  agreed  that  the  mort-  263. 


1236  MORTGAGE    FORECLOSURES.  [§    865 

the  holders  of  different  mortgages,  an  assignee  occupies  no 
better  position  than  did  his  assignor.'^ 

Thus,  in  a  case  where  a  mortgage  was  assigned,  but  the 
assignment  was  not  recorded,  and  subsequently  a  satisfaction 
price  was  executed  by  the  original  mortgagee,  which  was 
'duly  recorded,  and  a  second  mortgage  was  executed  upon  the 
■same  premises,  it  was  held  that  the  recording  act  protected  the 
second  mortgagee  and  that  he  had  a  prior  lien  upon  the  sur- 
plus.'^^ 

The  supreme  court  of  the  United  States,  in  the  case  of 
the  Farmers'  Loan  and  Trust  Company  v.  Newman  "^^y  say 
that  where  the  receiver  of  a  railroad  company  agreed  to  pay 
a  lien  on  the  part  of  the  railroad  out  of  the  money  realized 
from  such  part  upon  foreclosure  sale,  and  the  lienor  surren- 
dered his  lien,  and  the  receiver  bid  in  the  property  on  such 
sale  as  an  entirety,  the  right  of  the  lienor  to  be  paid  out  of 
the  aggregate  proceeds  of  the  sale  is  not  defeated  by  the 
fact  that  the  mortgage  bondholders  made  payment  in  mort- 
gage bonds,  as  allowed  by  the  decree  of  sale  and  if  the 
lien  is  not  discharged  in  money  the  property  will  again  be  sold 
as  an  entirety,  or  so  much  thereof  as  is  necessary  to  raise 
the  amount  of  the  lien. 

i 

§  865.  Burden  of  proof  in  showing  priorities. — To  over- 
come the  presumption  as  to  priority,  the  burden  of  proof  is 
upon  the  holder  of  the  subsequent  claim  to  show  his  prior 
right  by  positive  evidence."^^  If  the  mortgage  first  recorded  is 
shown  not  to  have  been  a  valid  lien  for  its  amount  at  the  time 
a  subsequent  mortgage  was  given,  by  reason  of  the  consider- 
ation not  having  been   fully  paid,   and   there  was  a   verbal 

72  Yerger  v.  Bars,  56  Iowa,  77.  (N.  Y.)  Pr.  N.  S.  97,  53  N.  Y.  404; 

"^^  Bacon  v.   VanSchoonhoven,   19  Peabody  v.  Roberts,  47   Barb.    (N. 

Hun  (N.  Y.)   158.  Y.)   91;  Freeman  v.  Schroeder,  43 

74  127  U.   S.  649,  32  L.   ed.  303,  Barb.  (N.  Y.)  618,  29  How.  (N.  Y."i 

8  Sup.  Ct.  Rep.  1364.  Pr.  263 

''^  People,  etc.  v.  Bergen,  15  Abb. 


866] 


PROCEEDINGS    ON    SURPLUS    MONEYS. 


1237 


agreement  between  the  mortgagor  and  the  mortgagee  that  it 
should  not  become  operative  until  the  whole  consideration  was 
paid,  the  presumption  of  priority  will  be  destroyed."^^  And 
where  a  mortgage  is  recorded  with  notice  to  the  mortgagee 
of  the  existence  of  a  prior  unrecorded  mortgage,  such  notice 
will  destroy  the  priority  of  the  lien  of  the  mortgage  last  exe- 
cuted.'^ 

§  866.  Rights  of  equal  mortgagees  —  Senior  mort- 
gagees.— Where  the  liens  are  equal  in  rank  they  will  be 
protected  by  the  court,  and  the  power  of  the  court  to  protect 
such  equality  will  not  be  impaired  by  an  error  into  which  the 
referee  may  have  fallen  in  conducting  the  sale."'* 


"^^  Freeman  v.  Schroeder,  43  Barb. 
(N.  Y.)  618,  29  How.  (N.  Y.)  Pr. 
263. 

''  Haywood  v.  Shaw,  16  How. 
(N.  Y.)   Pr.  119. 

■5^8  Eleventh  Ward  Savings  Bank 
V.  Hay,  55  How.  (N.  Y.)  Pr.  444. 
In  this  case  three  actions  were  com- 
menced to  foreclose  separate  mort- 
gages of  equal  date,  lien,  time  of 
record,  and  amount  of  purchase 
money  upon  the  same  parcel  of 
land,  the  three  mortgages  having 
been  originally  made  to  secure  a 
separate  amount  to  each  of  the  sev- 
eral grantors  of  the  premises.  The 
actions  were  numbered  1,  2  and  3 ; 
three  separate  judgments  were 
entered,  all  of  which  were  dated 
Nov.  20,  and  were  filed  on  Nov.  22. 
The  referee  appointed  by  said  judg- 
ments to  sell  the  mortgaged  prem- 
ises, offered  them  for  sale  under 
the  judgment  in  action  No.  1,  and 
the  premises  were  sold  for  $34,500. 
Afterwards  the  same  premises  were 
offered  for  sale  under  judgment 
No.  2,  and  were  struck  off  to  the 
same  purchaser  for  $250,  and  im- 


mediately thereafter  the  same  prem- 
ises were  offered  by  the  referee  foi 
sale  under  the  third  judgment,  and 
were  struck  off  to  the  same  pur- 
chaser for  $250.  On  the  petition  of 
one  of  the  sureties  for  the  payment 
of  said  mortgage  debt,  asking  that 
an  order  be  made  in  said  actions 
directing  the  referee  to  apply  the 
amount  of  the  proceeds  of  the  sales 
under  said  judgments  equally  to 
each,  the  court  held:  (1)  that  no 
one  of  the  mortgages  had  any  pri- 
ority over  the  others  and  that  the 
referee  should  not.be  permitted  to 
give  precedence  to  one  of  the  judg- 
ments simply  because  he  found  it 
marked  No.  1 ;  that  the  court  itself 
had  no  power  to  give  that  judgment 
or  that  mortgage  priority;  (2)  that 
it  is  the  duty  of  the  court  to  pro- 
tect the  equality  of  liens  where  it 
exists,  and  that,  in  performing  that 
duty,  it  will  look  behind  the  pro- 
ceedings of  the  referee  to  the  trans- 
action out  of  which  the  liens  arose; 
(3)  that,  as  the  three  mortgages 
were  equal  liens,  equity  required 
that  the  money  received  at  the  sale 


1238 


MORTGAGE    FORECLOSURES. 


[§  867 


A  senior  mortgagee,  or  one  who  has  acquired  his  prior 
rights  by  subrogation,  can  claim  no  right  to  the  surplus 
moneys  realized  on  the  foreclosure  of  a  junior  mortgage;'^ 
because  his  lien  is  not  disturbed  thereby  and  his  remedy  is 
to  foreclose  his  senior  mortgage.*"  And  where  one  pur- 
chases at  a  judicial  sale  "subject  to  all  incumbrances,"  he  is 
not  entitled  to  have  the  surplus  moneys  applied  to  the  payment 
of  a  prior  recorded  mortgage,  the  existence  of  which  was 
unknown  to  all  the  parties  because  of  an  error  in  indexing  it.®^ 

§  867.  Several  mortgages  security  for  same  debt. — 
In  a  case  where  the  plaintiff,  who  owned  two  mortgages 
against  the  same  defendant  upon  two  distinct  parcels  of  land, 


should    be    divided     among    them 

equally. 

"^^  See  Brown  v.  Crookston  Agri- 
cultural Assoc.  34  Minn.  545.  See 
Ward  V.  McNangliton,  43  Cal.  159; 
Soles  V.  Sheppard,  99  111.  616.  In 
a  recent  case  it  appeared  that  M. 
and  C.  each  owned  a  one-half  in- 
terest in  a  piece  of  real  estate  on 
which  D.,  as  a  special  guardian, 
held  a  mortgage  executed  by  M.  At 
the  request  of  both  M.  and  C,  and 
upon  their  promise  to  give  him  a 
second  mortgage  upon  the  same 
property,  which  would  amply  se- 
cure his  claims,  without  an  order 
of  the  court,  D.  released  his  mort- 
gage so  that  they  could  raise  money 
on  a  first  mortgage.  This  mortgage 
was  given  to  plaintiff's  testator  to 
secure  $1,500,  C.  signing  as  surety 
for  M.  thereon;  before  another 
mortgage  was  given  to  D.,  M.  exe- 
cuted a  mortgage  upon  his  undi- 
vided share  to  C.  to  secure  her 
against  loss  on  the  mortgage  given 
to  plaintiff's  testator.  The  mort- 
gage subsequently  given  to  D.  was 


not  executed  by  C.  In  proceedings 
to  obtain  the  surplus  arising  on  the 
foreclosure  of  the  mortgage  given 
to  plaintiff's  testator,  the  court  held 
that  as  between  D's  and  C's  mort- 
gages, the  former  was  the  prior  lien 
and  entitled  to  have  the  surplus 
applied  thereon.  Plumb  v.  Thomp- 
son, 15  N.  Y.  Wk.  Dig.  310. 

In  Savings  Bank  of  Utica  v. 
Wood,  17  Hun  (N.  Y.)  133,  it  ap- 
peared that  a  mortgage  was  made 
for  the  benefit  of  a  brother  on  two 
tracts  of  land,  one  owned  by  him- 
self and  his  sisters  as  tenants  in 
common,  the  other  owned  by  him- 
self individually;  a  judgment  was 
afterwards  obtained  against  him, 
and  subsequently  the  sisters  mort- 
gaged their  interest.  It  was  held 
by  the  court,  that  upon  the  fore- 
closure of  the  first  mortgage,  the 
mortgage  executed  by  the  sisters 
was  entitled  to  priority  over  the 
judgment  in  the  surplus  moneys. 

80  Firestone  v.  State,  100  Ind.  226. 

^^Buttron  v.  Tibbitts.  10  Abb. 
(N.  Y.)  N.  C  41. 


§  868] 


PROCEEDINGS    ON    SURPLUS    MONEYS. 


1239 


brought  actions  to  foreclose  both  mortgages,  and  on  the  sale 
of  one  of  the  parcels  there  was  a  surplus,  and  of  the  other  a 
deficiency,  the  court  held  that  the  surplus  of  the  one  could 
not  be  applied  to  supply  the  deficiency  of  the  other.®^ 

And  it  has  been  held  that  a  junior  mortgage,  taken  as 
collateral  security  for  another  obligation,  does  not  entitle  the 
mortgagee  to  receive  his  debt  out  of  the  surplus  arising  from 
the  foreclosure  of  a  mortgage  prior  to  his  collateral  mortgage 
until  he  has  exhausted  his  principal  security.®*  It  was  held  in 
Cox  V.  Wheeler,®^  however,  that  where  a  mortgagee,  whose 
mortgage  was  payable  in  installments,  sold  the  premises  for  the 
payment  of  one  installment  subject  to  the  future  installments, 
he  was  entitled  to  the  surplus  moneys  arising  from  the  fore- 
closure beyond  the  installment  which  was  due  and  the  costs  of 
the  sale. 

§  868.  Priority  of  unrecorded  mortgage  over  subse- 
quent judgment. — In  order  that  mortgages  may  stand  in 
the  relation  of  being  prior  and  subsequent  to  one  another, 
they  must  cover  the  same  land.®^  It  has  been  held  that  an 
unrecorded  mortgage  to  secure  future  advances  is  entitled  to 
priority  over  a  subsequently  docketed  judgment,®^  unless  there 
has  been  a  fraudulent  intention  on  the  part  of  the  mortgagee 
in  withholding  his  mortgage  from  record." 


*2  Bridgen  v.  Carhartt,  Hopk.  Ch. 
(N.  Y.)  234.  See  Fliess  v.  Buck- 
ley, 24  Hun  (N.  Y.)  514. 

^^  Soule  V.  Ludlow,  3  Hun  (N. 
Y.)  503,  6  T.  &  C.  (N.  Y.)  24. 
See  post,  §  875. 

"7  Paige  Ch.  (N.  Y.)  248. 

85  Westervelt  v.  Voorhis.  42  N.  J. 
Eq.   (15  Stew.)   179. 

*8  Thomas  v.  Kelsey,  30  Barb. 
(N.  Y.)  268.  See  Savings  Bank 
of  Utica  V.  Wood,  17  Hun  (N.  Y.) 
133;  Wheeler  v.  Kirtland.  24  N.  J. 
Eq.  (9  C.  E.  Gr.)  552. 

87  In    the    case    of    the    Central 


Trust  Co.  V.  Sloan,  65  Iowa,  655, 
the  Central  Iowa  Railway  Co.  took 
the  title  to  its  property  under  a 
decree  and  order  of  the  circuit 
court  of  the  United  States,  which 
bound  it  to  pay  defendant's  claim. 
Afterwards,  but  before  the  defend- 
ant had  put  his  claim  into  judg- 
ment against  the  railway  company, 
it  mortgaged  its  property  to  the 
plaintiff's  trust  companj'.  It  was 
held  that  the  trust  company  knew, 
or  was  bound  to  know,  that  the 
title  of  the  railway  company  was 
based  on  the  decree  a^nd  order,  and 


1240  MORTGAGE   FORECLOSURES.  [§    869 

A  mortgage  to  secure  future  indorsements,  if  recorded, 
will  have  priority  over  subsequent  judgments  against  the  mort- 
gagor, as  well  for  indorsements  made  after  the  judgments  as 
before. ^^  And  where  a  mortgage  is  given  on  property,  while 
a  judgment  against  the  mortgagor  is  marked  "secured  on  ap- 
peal," on  which  it  would  otherwise  be  a  lien,  and  such  judg- 
ment is  thereafter  restored  as  a  lien,  the  mortgage  will  be 
entitled,  as  against  such  judgment,  to  priority  of  payment  out 
of  the  surplus  moneys  arising  on  the  foreclosure  of  a  prior 
mortgage.^^ 

§  869.  Second     mortgage     and     junior     judgments. — 

Where  mortgaged  premises  are  sold  under  a  prior  judgment 
and  the  surplus  arising  from  such  sale  is  brought  into  court,  it 
will  belong  to  the  second  mortgagee,  and  subsequent  mort- 
gagees of  the  land  will  be  preferred  to  judgment  creditors  of 
the  mortgagor,  if  the  mortgages  are  based  upon  equitable 
matters  which  arose  prior  to  the  docketing  of  the  judgments, 
notwithstanding  the  fact  that  the  judgments  were  recovered 
before  the  execution  of  the  second  and  subsequent  mortgages; 
because,  a  judgment  creditor  is  entitled  only  to  such  rights 
in  the  real  estate  as  the  judgment  debtor  rightfully  possessed 
at  the  time  the  judgment  was  perfected.^" 

§  870.  Preference  of  mortgage  over  mechanic's  lien. — 

In  the  distribution  of  the  proceeds  arising  from  the  sale  of 
mortgaged  premises,  a  mortgage  executed  prior  to  the  per- 
formance of  work  by  means  of  which  a  mechanic  secures  a 

that  its  mortgage  was  inferior  as  a  Y.)  280.    As  to  when  second  mort- 

lien    to    the   defendant's   judgment.  gagees    have    priority    over    judg- 

See  Sloan  v.  Central  Iowa  R.  Co.  ment    creditors,    whose    judgments 

62  Iowa,  728.  are  prior   to   the   recording  of  the 

88  Ackerman  v.  Hunsicker,  85  N.  mortgage,  see  Tallman  v.  Farley,  1 
Y.  43,  39  Am.  Rep.  621.  Barb.  (N.  Y.)  280;  Ray  v.  Adams, 

89  Union  Dime  Sav.  Inst.  v.  Dur-  4  Hun  (N.  Y.)  332;  Cook  v.  Kraft, 
yea,  3  Hun  (N.  Y.)  210.  3  Lans.  (N.  Y.)  512,  515. 

^^  Tallman  v.  Farley,  1  Barb.  (N. 


§    871]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1241 

lien  on  the  premises,  is  to  be  preferred  by  the  referee  to  such 
mechanic's  lien,^^ 

§  871.  Lien  of  judgment  on  surplus. — A  judgment  re- 
covered against  the  owner  of  the  equity  of  redemption  in 
mortgaged  premises  prior  to  a  sale  on  foreclosure,  will  be  a 
lien  on  the  surplus  moneys  arising  from  such  sale;^^  but  if 
the  judgment  is  not  perfected  until  after  the  sale  is  made, 
although  docketed  before  the  surplus  moneys  are  distributed, 
it  will  not  be  a  lien  on  such  surplus. ^^  A  mistake  in  docketing 
a  judgment,  by  stating  erroneously  the  date  on  which  it  was 
recovered,  has  been  held  not  to  affect  its  lien,  even  against  sub- 
sequent judgment  creditors.^^ 

A  judgment  creditor,  who  is  properly  made  a  defendant 
while  his  judgment  is  alive,  will  not  lose  his  right  to  share  in 
the  surplus  by  the  fact  that  the  lien  of  his  judgment  expires 
pending  the  action.^^  But  a  judgment  creditor,  whose  judg- 
ment was  not  a  lien  on  the  mortgaged  premises,  will  have  no 
right  to  share  in  the  proceeds  of  a  sale  of  the  decedent's  real 
estate.^®     Thus,  the  vendee  of  land,   who   in  an  action   for 

^^  Oppeultcimer  V.  Walker,  3  Hun  Bull.    36;    Perkins    v.    Stewart,    75 

(N.  Y.)  30.  Minn.  21,  77  N.  W.  434.     See  Nutt 

92  See  Staton  v  Webb,  137  N.  C.  v.  Cuming,  155  N.  Y.  309,  49  N.  E. 

35,  49  S.  E.  55;  O'Connor  as  ex'x  880.     See  also   Terry  v.  Fuller,  60 

etc.  V.  Georgia  Railroad  Bank,  121  Misc.  562,  112  N.  Y.  Supp.  450. 

Ga.  88,  48  S.  E.  716.  ^^  Fish  v.  Emerson,  44  N.  Y.  376; 

^^  Den  ham   v.    Cornell,  67   N.   Y.  Sears  v.   Biirnham,   17   N.  Y.  445; 

556,  562;  Sweet  v.  Jacocks,  6  Paige  Sears  v.   Mack,  2   Bradf.    (N.  Y.) 

Ch.     (N.    Y.)    355,    31    Am.    Dec.  394;  Edwards  v.  Sams,  3  III.  App. 

352;   Douglass  v.  Huston,  6  Ohio,  168.    Ste  Neele  v.  Berryhill,  4  How. 

156.      See    Shepard    v.    O'Neil,    4  {l<i.Y.)  Vr.  16;  Hodgen  v.  Guttery, 

Barb.   (N.  Y.)   125;  Hull  v  Spratt,  58  111.  431;  Stedman  v.  Perkins,  42 

1  Hun  (N.  Y.)  298;  Snyder  v.  Staf-  Me.  130. 

ford,    11    Paige    Ch.    (N.    Y.)    71;  ^^  Dempsey  v.  Bush,  18  Ohio  St. 

German  Savings  Bank  v.   Carring-  376.     See  also   Terry  v.  Fuller,  60 

ton,    14    N.    Y.    Week.    Dig.    475;  Misc.    562,    112   N.   Y.    Supp.   450; 

affirmed  89  N.  Y.  632;  Dempsey  v.  Nutt  v.  Cuming,  155  N.  Y.  309,  49 

Bush,  18  Ohio  St.  376.     Judgments  N.  E.  880. 

over  ten  years  old  are  not  liens  on  ^^  Davis  v.  Davis,  4  Redf.  (N.  Y.) 

the  surplus.    Floyd  v.  Clark,  2  Law  355 


1242  MORTGAGE    FORECLOSURES.  [§    872 

specific  performance,  has  recovered  a  judgment  for  the  pur- 
chase money  paid,  which  was  adjudged  to  be  a  hen.  from  the 
time  of  fiHng  his  lis  pendens,  on  the  surphis  arising  from  a 
sale  made  upon  the  foreclosure  of  a  prior  mortgage,  is  en- 
titled to  priority  in  the  payment  of  his  judgment  out  of  such 
surplus,  as  against  a  judgment  creditor  whose  judgment  was 
recovered  after  the  filing  of  such  lis  pendens.^'' 

A  judgment  creditor,  who  purchases  mortgaged  premises 
at  an  execution  sale  under  his  judgment,  is  entitled  to  the 
surplus  arising  on  a  sale  made  under  a  prior  mortgage,  in 
preference  to  the  holder  of  a  junior  judgment.'*  But  a  mort- 
gagee, on  recovering  a  judgment  for  deficiency  against  his 
mortgagor's  administrator,  cannot  maintain  an  action  to  have 
his  judgment  declared  a  lien  upon  the  surplus  moneys  arising 
upon  the  foreclosure  of  a  mortgage  on  other  lands  given  by 
the  same  mortgagor  to  another  mortgagee.^  The  only  remedy 
of  such  a  judgment  creditor,  besides  that  against  the  person- 
alty in  the  administrator's  hands,  is  an  action  against  the 
mortgagee's  heirs  or  devisees ;  if  they  are  insolvent,  the  court 
may  direct  the  surplus  to  be  held  and  applied  in  satisfaction  of 
the  judgment.^ 

§  872.  What  interests  bound  by  lien  of  judgment. — 

The  only  interest  bound  by  a  judgment  lien  is  the  actual 
interest  which  the  debtor  has  in  the  property  at  the  time 
the  judgment  is  docketed;  when  the  judgment  debtor  has 
no  interest  in  the  premises  other  than  the  mere  naked  legal 
title,   the  lien   of  the  judgment  will   not  attach.^     Thus,   if 

97  Hm//  v.  Spratt,  1  Hun  (N.  Y.)  ^  Fliess  v.  Buckley,  24  Hun    (N. 

298.     But  he  is  not  entitled  to  in-  Y.)    514,   aiif'd  90   N.   Y.   286.     See 

terest    thereon    from    the    time    of  ante,  §  236. 
fiWng  his  lis  pendens.  ^  Hays   v.    Reger,    102    Ind.    527; 

^^  She  par  d  v.  O'Neil,  4  Barb.  (N.  Thomas  v.  Kennedy,  24  Iowa,  397, 

Y.)     125;    Snyder    v.    Stafford,    11  95  Am.  Dec.  740;  Brown  v.  Pierce, 

Paige  Ch.  (N.  Y.)  71.  74  U.  S.   (7  Wall.)   205,  19  L.  ed. 

^^  Fliess  V.  Buckley,  24  Iran  (N.  134.     See   Wheeler  v.    Wlicedon,  9 

Y.)   514.  aflf'd  90  N.  Y.  286.  S.  (1  Pet.)  443,  7  L.  ed.  213. 


§  873] 


PROCEEDINGS    ON    SURPLUS    MONEYS. 


1243 


a  judgment  debtor  is  in  possession  merely  under  a  contract 
to  purchase,  a  court  of  equity  will  permit  the  actual  owner  of 
the  premises  to  sliow  that  the  judgment  debtor  has  no  real 
interest  therein. 

A  lien  thus  acquired  constitutes  no  legal  interest  in  the 
land  itself,  but  is  merely  a  general  claim  as  distinguished 
from  a  specific  lien  securing  a  preference  on  subsequently 
acquired  interests  in  the  property;^  still,  a  court  of  equity 
will  always  protect  the  equitable  rights  of  third  parties  exist- 
ing at  the  time  the  judgment  lien  attaches  to  the  prop- 
erty.* 

§  873.  Satisfying  judgments  from  surplus. — Where 
there  are  judgment  liens  upon  the  mortgaged  premises  when 
sold,  such  liens  are,  by  the  sale,  transferred  to  the  surplus 
and  must  be  satisfied  therefrom  in  the  order  of  their  prior- 
ity, before  the  owner  of  the  equity  of  redemption  will  be 
entitled  to  receive  any  part  thereof ;  ^  such  lienors  will  be  en- 
titled to  the  payment  of  their  claims  before  a  widow  can  re- 
ceive an  assignment  of  her  dower  from  the  surplus.® 

Where  there  is  a  surplus  fund  in  court  arising  from  a  fore- 


3  White  V.  Carpenter,  2  Paige  Ch. 
(N.  Y.)  217;  Baker  v.  Morton.  79 
U.  S.  (12  Wall.)  158.  20  L.  ed.  265. 
See  Buchan  v.  Sumner,  2  Barb.'Ch. 
(N.  Y.)  165,  47  Am.  Dec.  305; 
Ells  V.  Tousley,  1  Paige  Ch.  (N. 
Y.)  280;  Massingill  v.  Downs,  48  U. 
S.  (7  How.)  767,  12  L.  ed.  906; 
Couard  v.  Atlantic  Ins.  Co.  26  U. 
S.  (1  Pet.)  443,  7  L.  ed.  213. 

^Ells  V.  Tousley,  1  Paige  Ch.  (N. 
Y.)  280;  Snyder  v.  Martin,  17  W. 
Va.  276,  41  Am.  Rep.  671.  See 
Morris  v.  Mowatt,  2  Paige  Ch.  (N. 
Y.)  586,  22  Am.  Dec.  661;  Coster 
V.  Bank  of  Georgia.  24  Ala.  27; 
O'Rourke  v.  O'Connor.  39  Cal.  442; 
Orth  V.  Jennings,  8  Blackf.    (Ind.) 


420 ;  Churchill  v.  Morse,  23  Iowa, 
229,  92  Am.  Dec.  422;  IValke  v. 
Moody,  65  N.  C.  599;  Shryock  v. 
Waggoner,  28  Pa.  St.  430;  Cover  v. 
Black,  1  Pa.  St.  493;  Ashe  v.  Liv- 
ingston, 2  Bay  (S.  C.)  80;  Withers 
V.  Carter,  4  Gratt.  (Va.)  407,  50 
Am.  Dec.  78;  Brown  v.  Pierce,  74 
U.  S.  (7  Wall.)  205,  19  L.  ed.  134. 

^Eddy  V.  Smith,  13  Wend.  (X. 
Y.)  488.  See  also  Terry  v.  Fuller, 
60  Misc.  562,  112  N.  Y.  Supp.  450; 
Hunneman  v.  Lowell  Institution  for 
Savings,  205  Mass.  441,  91  N.  E. 
526. 

6  New  York  Life  Ins.  Co.  v. 
Mayer,  19  Abb.  (N.  Y.)  N.  C.  92. 
See  post,  §  879. 


1244  MORTGAGE    FORECLOSURES.  [§    874 

closure  against  the  executors  or  administrators  of  a  deceased 
mortgagor,  a  creditor  who  has  obtained  a  proper  decree  in  a 
surrogate's  court  will  be  preferred  in  its  distribution  to 
legatees  claiming  the  fund.' 

§  874.  Specific  lien  of  judgment  and  executory  con- 
tract.— Judgment  creditors  who  obtain  a  specific  lien 
upon  the  land  before  foreclosure,  are  entitled  to  priority  of 
payment  out  of  the  surplus  according  to  the  dates  of  their 
respective  judgments.®  Where  mortgaged  premises  have  been 
sold  upon  execution  under  a  judgment  junior  to  the  mortgage, 
and  the  time  for  redemption  has  not  expired  at  the  time  of  the 
foreclosure  sale,  the  general  lien  of  the  judgment  will  become 
a  specific  lien  upon  the  surplus  to  the  extent  of  the  purchaser's 
bid  on  the  execution  sale,  and  of  the  interest  thereon.^ 

But  where  a  mortgagee  obtained  a  decree  of  foreclosure, 
by  virtue  of  which  the  property  was  sold,  and  being  also 
a  judgment  creditor  of  the  mortgagor,  had  an  execution  levied 
on  the  mortgaged  premises,  to  which,  however,  the  mortgagor 
had  no  title  at  the  time  of  the  levy,  it  was  held  that  such 
judgment  creditor  was  not  entitled  to  participate  in  the  sur- 
plus, even  though  the  mortgagor,  during  the  pendency  of  the 
foreclosure  suit,  became  the  owner  of  the  equity  of  redemp- 
tion.i" 

It  is  thought  that  an  agreement  to  execute  a  mortgage  on 
particular  lands  described  therein,  is  in  equity  a  specific  lien 

"^Clark's  Case,  15  Abb.   (N.  Y.)  222,  44  Am.  Dec.  213;  Fremoult  v. 

Pr.  227.  Dedire,   1    P.   Wms.  429 ;   Fiyich  v. 

^  Purdy  V.  Doyle,  1  Paige  Ch.  (N.  Earl  of  Winchelsea,  1  P.  Wms.  277; 

Y.)  558.    As  to  the  proposition  that  Lovegrove  v.   Cooper,  2  Sm.  &  G. 

specific     liens,     whether     legal     or  271 ;    Wilson   v.    Fielding,   2   Vern. 

equitable,     secured    on    mortgaged  763,   10  Mod.  426,  Adams  Eq.  256, 

premises   before    the    sale,    will    be  1    Story    Eq.    Jur.    §§    551,    553,    2 

respected  by  courts   of   equity,   see  White  &  T.  &  L.  Cas.  pt.  1,  290. 

Codwise  v.  Gelston,  10  Johns.    (N.  ^Snyder  v.  Stafford.  11  Paige  Ch, 

Y.)    522;    Atlas    Bank    v.    Nahant  (N.  Y.)  71. 

Bank,  44  Mass.  (3  Met.)  581;  Ten-  ^^ Smith  v.  Smith,  13  Mich.  258. 
nant  v.  Stoney,  1  Rich.  (S.  C.)  Eq. 


§    876]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1245 

on  such  lands,  and  that  in  the  distribution  of  the  surplus 
arising  on  a  sale  under  a  prior  mortgage,  it  will  be  preferred 
to  subsequent  judgment  liens.**  While  an  oral  agreement  to 
execute  a  mortgage  is  executory  and  within  the  statute  of 
frauds  and  not  enforceable,  yet  if  the  promisor  has  actually 
completed  the  agreement  by  properly  executing  and  delivering 
a  formal  mortgage,  it  will  become  as  effective  for  all  purposes 
as  if  it  had  been  reduced  to  writing  originally." 

§  875.  Judgment  by  confession  as  an  indemnity. — A 
judgment  by  confession,  given  to  secure  and  indemnify  a 
party  as  a  surety,  is  a  lien  upon  the  equity  of  redemption  of 
the  defendant's  mortgaged  premises,  and  will  be  entitled  to 
payment  out  of  the  surplus  in  the  order  of  its  lien,  although 
the  party  may  not  have  been  damnified.  The  security  will 
be  transferred  from  the  equity  of  redemption  to  the  surplus 
arising  on  the  sale,  and  its  lien  can  be  discharged  only  by  the 
full  discharge  of  the  surety  from  all  liability.*^ 

§  876.  Judgment  against  sheriff. — It  has  been  held  that 
where  a  judgment  creditor  is  entitled  to  the  surplus,  or  a 
part  thereof,  the  fact  that  he  has  recovered  a  judgment 
against  the  sheriff  for  not  returning  his  execution  upon  the 
judgment  will  not  affect  his  claim  to  the  surplus,  nor  the 
claim  of  his  assignee  of  the  first  judgment,  where  such 
judgment  has  been  assigned,  in  the  absence  of  a  showing  that 
the  assignment  was  made  for  the  benefit  of  the  sheriff;  the 
mere  fact  that  the  assignee  purchased  the  judgment  at  the 
request  of  the  sheriff  does  not  show  that  it  was  purchased 
for  the  sheriff's  benefit.** 

"  See   Otis  v.  Sill,  8  Barb.    (N.  Y.)  310.    See  Siemon  v.  Schurck,  29 

Y.)     119;    White    v.    Carpenter,    2  N.  Y.  598. 

Paige  Ch.  (N.  Y.)  217.  ^^  Lansing  v.  Clapp,  3  How.   (N. 

^^  Dodge    v.     Wellman,     1     Abb.  Y.)  Pr.  238.     See  onf^,  §  871. 

App.   Dec.    (N.   Y.)    512;   Burdick  ^^  Lansing  v.  Clapp,  3  How.   (N. 

V.   Jackson,  7   Hun    (N.   Y.)    490;  Y.)  Pr.  238. 
Arnold  v.  Patrick,  6  Paige  Ch.  (N. 


1246  MORTGAGE    FORECLOSURES.  [§    877 

§  877.  Judgment  confessed  by  one  member  of  a  firm. — 
A  judgment  confessed  by  two  members  of  a  firm  of  three, 
for  a  partnership  debt,  has  a  priority  of  lien  over  a  subsequent 
judgment  recovered  against  all  the  members  of  the  firm.^^ 

In  a  proceeding  under  the  general  rules  of  practice  of  the 
New  York  supreme  court, ^^  to  ascertain  the  priorities  of  the 
several  liens  upon  the  surplus  moneys  arising  upon  the  fore- 
closure of  a  mortgage,  the  rule  in  equity  as  to  the  application 
of  partnership  and  individual  property  among  firm  and  in- 
dividual creditors  does  not  apply,  but  the  rule  of  law  controls 
which  gives  a  judgment  creditor  of  the  firm,  who  has  ac- 
quired a  lien  upon  the  lands  of  a  partner  by  docketing  the 
judgment,  a  claim  upon  the  surplus  superior  to  the  claim  of 
a  junior  judgment  creditor  of  the  partner." 

§  878.  Married  woman's  equitable  right  to  surplus. — 

It  has  been  said  that  upon  the  foreclosure  of  a  mortgage 
upon  real  property  belonging  to  a  married  woman,  the  sur- 
plus brought  into  court  is  subject  to  its  jurisdiction  as  a 
court  of  equity;  and  that,  independently  of  the  married 
woman's  acts,^*  the  court  will  not  allow  the  fund  to  be 
reached  by  the  husband's  creditors  without  first  making  suit- 
able provision  for  the  wife  and  her  children."  It  seems  that 
where  the  surplus  is  small  and  not  more  than  sufficient  to 
support  her,  the  whole  thereof  should  be  paid  to  the  wife.** 

In  those  states  where  the  right  of  homestead  prevails,  a  mar- 
ried woman's  right  to  demand  a  portion  of  such  surplus  in 

^^  Stevens  v.  Bank  of  Central  N.  19  See    Udall  v.   Kenney,  3  Cow. 

Y.  31  Barb.  (N.  Y.)  290.  (N.   Y.)    590;   Sleight  v.  Read,  18 

16  N.  Y.  Supreme  Court  Rule  64.  Barb.  (N.  Y.)  159,  9  How.  (N.  Y.) 

^TMeech  v.  Allen,   17  N.  Y.  300,  Pr.  278;  Dumond  v.  Magee,  4  Johns. 

72  Am.  Dec.  465;  New  York  Life  Ch.   (N.  Y.)  318;  Wiswall  v.  Hall, 

Ins.  Co.  V.  Mayer,  19  Abb.  (N.  Y.)  3  Paige  Ch.  (N.  Y.)  313;  Mumford 

N.    C.    92;    Averill    v.    Loucks,    6  v.  Mwrroy,  1  Paige  Ch.  (N.  Y.)  620. 

Barb.   (N.  Y.  470.  ^o  Sleight  v.  Read,   18  Barb.    (N. 

18  N.  Y.  Laws  of  1848,  chap.  200,  Y.)  159,  9  How.  (N.  Y.)  Pr.  278. 
1849,  chap.  375. 


§    879]  PROCEEDINGS    ON    SURPLUS     MONEYS.  1247 

lieu  thereof  will  be  protected.  Thus  the  supreme  court  of 
Ohio,  in  the  case  of  Niehaus  v.  Faul,^^  say  that  in  a  case  where 
two  lots  are  separately  mortgaged,  by  the  sale  and  confir- 
mation of  the  first,  where  the  owner  had  a  right  of  home- 
stead, her  ownership  was  devested;  and  if  the  surplus  arising 
from  its  sale  on  foreclosure  was  insufficient,  she  was  entitled, 
under  the  statute, ^^  to  demand  an  allowance  in  lieu  of  her 
homestead  exemption  out  of  the  surplus  arising  from  the  sale 
of  other  lands.  The  right  to  demand  such  an  allowance  out 
of  the  proceeds  of  land  sold  under  foreclosure,  in  lieu  of  a 
homestead,  is  to  be  determined  by  the  state  of  facts  at  the 
time  the  surplus  arising  from  the  sale  was  finally  disposed  of 
by  the  courts. ^^ 

Where  a  surplus  arises  on  the  foreclosure  of  property  held 
by  the  husband  and  wafe  as  tenants  by  the  entirety,  it  will  be 
held  under  the  control  of  the  court  to  await  the  severance 
of  the  estate  by  the  death  of  one  of  the  parties,  when  it  will 
become  available  in  satisfaction  of  judgments  previously  taken 
against  the  survivor.^* 

§  879.  Dower  in  surplus  moneys.  —  Since  surplus 
moneys  arising  upon  the  sale  of  mortgaged  lands  take  the 
place  of  the  lands  for  parties  having  liens  or  vested  rights 
therein,  the  widow  of  the  owner  of  the  equity  of  redemption 
is  entitled  to  dower  in  the  surplus  the  same  as  she  was  in 
the  land  before  the  sale.^*  But  where  she  unites  with  her  hus- 
band in  the  execution  of  a  mortgage  on  real  estate  belonging 
to  him,  and  the  property  is  afterwards  sold  under  such  mort- 

2143  Ohio  St.  63,  1  N.  E.  87.  derwood,    18    Barb.    (N.    Y.)    564; 

22  Ohio  Rev.  Stat.  §  5441.  Denton  v.  Nanny.  8  Barb.   (N.  Y.) 

^^  Niehaus  v.  Paul,  43  Ohio  St.  63,  618;  Titus  v.  Neilson,  5  Johns.  Ch. 

1  N.  E.  87.  (N.   Y.)    458;    Taibele  v.    Tarbele, 

^Servis   v.   Dorn,   76   N.   J.   Eq.  1   Johns.   Ch.    (N.  Y.)   45;  Elmen- 

241,  76  Atl.  246.  dorf  v.  Lockwood.  4  Lans.  (N.  Y.) 

25  See    Matthews   v.    Duryee,    17  393;  Kling  v.  Ballentine,  40  Ohio  St. 

Abb.    (N.  Y.)    Pr.  256,   affirmed   4  394. 
Keyes   (N.  Y.)   525;   Vartie  v.  C/- 


1248 


MORTGAGE    FORECLOSURES. 


[§  879 


gage,  she  will  be  entitled  to  dower  only  in  the  surplus  after 
the  payment  of  the  mortgage,^®  because  her  mortgage  will 
operate  to  its  extent  to  extinguish  her  right. ^' 

The  right  of  the  wife  of  a  mortgagor  to  dower  in  the 
surplus  remaining  after  discharging  the  mortgage  lien,  was 
once  doubted  in  those  cases  where  the  husband  survived  the 
foreclosure  sale  but  died  before  the  distribution  of  the  sur- 
plus ;  ^^  but  it  is  now  well  settled  in  New  York  ^^  and  in  other 
states,^"  that  where  a  widow  joins  her  husband  in  a  mortgage 
on  land  of  which  he  was  seized,  she  is  entitled  to  dower  in 
the  surplus  moneys  arising  from  the  foreclosure  sale.  She 
will  have  a  right  of  dower  in  the  equity  of  redemption  mere- 
ly, however,  and  not  in  the  whole  premises.^^ 

It  is  said  that  if  a  husband  dies  after  a  foreclosure  sale  and 


28  Smith  V.  Jackson,  2  Edw.  Ch. 
(N.  Y.)  28;  Titus  v.  Neilson,  5 
Johns.  Ch.  (N.  Y.)  458;  Hawley  v. 
Bradford,  9  Paige  Ch.  (N.  Y.)  200, 
37  Am.  Dec.  390;  Bank  of  Com- 
merce V.  Owens,  31  Md.  320,  1  Am. 
Rep.  63 ;  Hinchman  v.  Stiles,  9  N. 
J.  Eq.  (1  Stockt.)  361;  Hartshorne 
V.  Hartshorne,  2  N.  J.  Eq.  (1  H.  W. 
Gr.)  349. 

2'  Elmendorf  v.  Lockwood,  4 
Lans.  (N.  Y.)  393.  But  see  Kauff- 
man  v.  Peacock,  115  111.  212,  3  N. 
E.  749.  In  the  case  of  New  York 
Life  Ins.  Co.  v.  Mayer,  19  Abb.  (N. 
Y.)  N.  C.  92,  it  was  questioned 
whether  a  claim  of  the  wife  to 
dower,  not  being  a  vested  interest 
in  the  lands  or  a  lien  upon  them, 
which  is  cut  ofif  by  foreclosure,  can 
be  entertained  in  proceedings  for 
the  distribution  of  the  surplus,  cit- 
ing Dunning  v.  Ocean  Nat.  Bank, 
61  N.  Y.  497,  10  Am.  Rep.  293; 
Mutual  Life  Ins.  Co.  of  N.  Y.  v. 
Truchtnicht,  3  Abb.  (N.  Y.)  N.  C. 
135;  Matthews  v.  Duryee,  45  Barb. 
(N.  Y.)  69;  German  Savings  Bank 


V.  Sharer,  25  Hun  (N.  Y.)  409; 
Flicss  V.  Buckley,  24  Hun  (N.  Y.) 
514,  aff'd  in  90  N.  Y.  286. 

^^  Frost  V.  Peacock,  4  Edw.  Ch. 
(N.  Y.)  678. 

^^  Malloney  v.  Horan,  49  N.  Y. 
Ill,  10  Am.  Rep.  335;  Matthews  v. 
Duryee,  45  Barb.  (N.  Y.)  69,  aff'd 
3  Abb.  App.  Dec.  (N.  Y.)  220,  17 
Abb.  (N.  Y.)  Pr.  256;  Detiton  v. 
Nanny,  8  Barb.  (N.  Y.)  618;  Bly- 
denburgh  v.  Northrop,  13  How.  (N. 
Y.)  Pr.  289;  Titus  v.  Neilson,  5 
Johns.  Ch.  (N.  Y.)  452;  Bell  v. 
Mayor,  etc.  of  New  York,  10  Paige 
Ch.  (N.  Y.)  49;  Hawley  v.  Brad- 
ford, 9  Paige  Ch.  (N.  Y.)  200,  37 
Am.  Dec.  390. 

30  Hinchman  v.  Stiles,  9  N.  J.  Eq. 
(1  Stockt.)  454;  Taylor  v.  Fowler, 
18  Ohio,  567,  51  Am.  Dec.  469; 
Rands  v.  Kendall,  15  Ohio,  671 ; 
Fox  V.  Pratt,  27  Ohio  St.  512;  Cul- 
ver V.  Harper,  27  Ohio  St.  464; 
State  Bank  of  Ohio  v.  Hinton,  21 
Ohio  St.  509. 

31  Hawley  v.  Bradford,  9  Paige 
Ch.  (N.  Y.)  200,  27  Am.  Dec.  390. 


§    880]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1249 

the  distribution  of  the  surplus,  the  wife  cannot  claim  an 
interest  in  such  surplus,  but  that  if  he  dies  after  the  sale  and 
while  the  surplus,  or  any  part  of  it,  is  within  the  control  of 
the  court,  she  will  be  dowable  of  the  surplus  so  far  as  her 
right  can  be  equitably  paid  from  the  portion  remaining  un- 
distributed. If  the  husband  is  living,  one-third  of  such  sur- 
plus should  be  invested  for  her  during  their  joint  lives;  if 
he  is  dead,  she  will  be  entitled  to  the  income  of  one-third 
thereof  for  life.^^ 

A  widow  is  dowable  only  in  that  portion  of  the  surplus 
which  still  remains  in  the  hands  of  the  court  at  the  time  her 
application  therefor  is  made;  if  any  of  those  interested  in 
the  surplus  have  received  their  portion,  they  cannot  be  called 
upon  to  refund  it;  neither  can  those  who  have  not  received 
their  share  be  required  to  suffer  loss  by  reason  of  the  demand 
made.^^ 

The  supreme  court  of  the  District  of  Columbia,  In  re 
Thompson,^*  say  that  where  a  deed  of  trust  in  which  the 
grantor's  wife  joined,  releasing  her  dower,  directed  the 
trustees  to  sell  upon  default  and  pay  the  surplus,  after  paying 
the  debt,  to  the  grantor,  his  executors,  administrators,  or 
assigns,  and  the  property  was  sold  under  the  trust  after  the 
grantor's  death,  the  widow  is  not  entitled  to  any  of  the  sur- 
plus, which  is  distributable  to  the  heirs. 

§  880.  Inchoate  right  of  dower. — Some  courts  have 
gone  to  the  extent  of  protecting  the  inchoate  right  of  dower 
of  the  wife  during  coverture  in  the  surplus  from  a  mort- 
gage sale  by  permitting  her,  as  against  subsequent  lienors,  to 
have  one-third  of  such  surplus  invested  for  her  benefit,  and 
kept    invested    during    the    joint   lives    of    herself    and    hus- 

82  Vartie  v.  Underwood,  18  Barb.  other  states,  she  is  entitled  to  one- 

(N.  Y.)    561;   Denton  v.  Nanny,  8  third  in  fee. 

Barb.    (N.    Y.)    618;    Matthews   v.  ^^  State  Bank  of  Ohio  v.  Hinton, 

Duryee,  4  Keyes   (N.  Y.)   525.     In  21  Ohio  St.  509. 

Indiana,    Iowa    and    possibly    some  ^^6  Mackey  (D.  C.)  536. 
Mortg.  Vol.  II.— 79. 


1250  MORTGAGE    FORECLOSURES.  [§    880 

band,  and  the  interest  to  be  subject  to  the  order  of  the  court 
during  the  life  of  the  husband  and  to  be  paid  to  her  during  her 
hfe,  in  case  she  survives  him.^^ 

In  the  case  of  Kaufifman  v.  ElHs,^^  the  question  of  a  wife's 
right  to  inchoate  dower  in  surplus  was  fully  discussed  by  the 
supreme  court  of  Illinois.  In  that  case  it  was  contended  on 
behalf  of  the  appellant  that,  by  joining  her  husband  in  the 
execution  of  the  deed  of  trust  under  which  the  property  was 
sold  and  the  surplus  arose,  she  only  released  her  inchoate  right 
of  dower  to  the  mortgagee,  and,  as  the  attaching  creditors 
did  not  claim  under  the  mortgagee,  she  was  entitled  to  be 
protected  in  her  inchoate  dower  rights  as  against  them.  It 
was  claimed  by  the  appellees  that  where  a  wife  unites  with 
her  husband  in  the  execution  of  a  mortgage  or  deed  of  trust, 
releasing  her  inchoate  dower,  and  a  sale  occurs  under  such 
mortgage  or  deed  of  trust  during  the  lifetime  of  the  husband, 
the  surplus  money  arising  from  such  sale  becomes  personal 
property,  payable  to  the  husband,  and  the  wife  has  no  interest 
whatever  therein.  In  discussing  the  question  the  court  say : 
"The  question  presented  is  not  entirely  free  from  difficulty; 
it  is  one  upon  which  the  authorities  are  not  entirely  harmon- 
ious. When  there  has  been  marriage,  seisin  and  the  death 
of  the  husband,  the  right  of  the  dower  is  complete  and  may 
then  be  enforced;  but  where  there  has  been  marriage  and 
seisin,  and  death  of  the  husband  has  not  occurred,  an  inchoate 
right  of  dower  only  exists.  In  this  case  it  is  clear  that  appel- 
lant had  an  inchoate  right  of  dower  in  the  equity  of  redemp- 

35  Vartie  v.  Underwood,  18  Barb.  C.  E.  Gr.)   231 ;  Kauffman  v.  Pea- 

(N.   Y.)    561;   Citizens'  Sav.   Bank  cock,  115  111.  212,  3  N.  E.  749.     But 

V.   Mooney,  26  Misc.  67,  56  N.  Y.  see  Grube  v.  Lilcnthal,  51  S.  C.  442, 

Supp.  548.     See  Malloney  v.  Horan,  29  S.  E.  230. 

49    N.   Y.    Ill,    10  Am.    Rep.   335;  In  Indiana  the  wife  is  entitled  to 

Mills  V.  VanVoorhies,  20  N.  Y.  412 ;  the  whole  surplus  where  it  is  less 

Denton  v.  Nanny,  8  Barb.   (N.  Y.)  than  one-third  of  the  value  of  the 

618;   Blydenburgh  v.  Northrup,   13  property.     Bartmess  v.  Holliday,  27 

How.  (N.  Y.)  Pr.  289;  Matthews  v.  Ind.  App.  544,  61  N.  E.  750. 

Duryee,    4    Keyes     (N.    Y.)     525;  36  115  m.  212,  3  N.  E.  749. 
Vreeland  V.  Jacobus,  19  N.  J.  Eq.  (4 


§    880]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1251 

tion  of  the  premises,  of  which  she  could  not  have  been  de- 
prived by  any  creditor  of  her  husband  if  she  had  paid  off 
the  deed  of  trust;  but  this  she  failed  to  do,  and  suffered  the 
land  to  be  sold  under  the  deed  of  trust  and  converted  into 
money.  Under  such  circumstances  has  she  any  dower  rights 
in  the  surplus  money  arising  from  the  sale? 

"In  Cook  v.  Dillon,^'  in  a  case  somewhat  analogous  to  the 
case  of  Hoffman  v  Ellis,  the  court  held  that  surplus  money 
in  the  hands  of  a  trustee  after  satisfying  the  deed  of  trust, 
was  the  personal  property  of  the  mortgagor,  liable  to  be 
seized  in  payment  of  his  debts.  The  same  doctrine  was  an- 
nounced in  Dean  v.  Phillips,^®  and  in  Newhall  v.  Lynn  Sav- 
ings Bank."  ^^ 

The  court  in  the  course  of  the  opinion  in  Kauffman  v.  Ellis, 
say;  "The  appellant  has  cited  Denton  v.  Nanny,*"  as  a  lead- 
ing authority  sustaining  her  view  of  the  case.  The  decision 
sustains  the  position  of  the  appellant,  and  the  doctrine  an- 
nounced was  approved  in  Vartie  v.  Underwood.*^  The  appel- 
lant also  relies  upon  Vreeland  v.  Jacobus,  *^  Wheeler  v.  Kirt- 
land,*^  De  Wolf  v.  Murphy,"  and  Unger  v.  Leiter.*^  We 
are  not  inclined  to  follow  the  rule  laid  down  in  the  cases 
found  in  Barbour's  Reports.  The  court  in  which  the  cases 
were  decided  was  one  of  learning  and  ability,  but  it  was 
not  a  court  of  last  resort.  The  other  cases  cited  and  relied 
upon,  seem  to  sustain  appellant's  position;  but  we  do  not 
think  they  are  in  harmony  with  the  current  of  authority  on 
the  subject,  Cooley  says :  *®  'The  inchoate  right  of  dower  does 
not  become  property  or  anything  more  than  a  mere  expectancy 
at  any  time  before  it  is  consummated  by  the  husband's  death. 

"9  Iowa.  412,  74  Am.  Dec.  354.  «27  N.  J.   Eq.    (12  C.   E.   Gr.) 

38  17  Ind.  409.  534. 

39  101  Mass.  428.  432,  3  Am.  Rep.  «  11  R.  I.  630. 
387.  45  32  Ohio  St.  210. 

«8  Barb.  (N.  Y.)  618.  «  Const.  Lim.   (10th  ed.)  442. 

"  18  Barb.  (N.  Y.)  564. 
*2  19   N.   J.    Eq.    (4   C.   E.   Gr.) 
231. 


1252  MORTGAGE    FORECLOSURES.  [§    880 

In  neither  curtesy  nor  dower  does  a  marriage  alone  give  a 
vested  right ;  it  gives  only  a  capacity  to  acquire  a  right.  Here, 
the  husband  of  appellant  was  living,  and  whether  the  inchoate 
right  of  dower  would  ever  become  more  than  a  mere  expec- 
tancy would  depend  upon  the  fact,  which  might  never  occur, 
that  she  would  survive  him,  and  we  think  it  would  be  against 
sound  public  policy  to  tie  up  a  fund  in  the  hands  of  trustees 
to  abide  such  an  uncertain  contingency  as  that  relied  upon  by 
complainant  in  her  bill.  Again :  The  complainant  executed 
the  deed  of  trust  and  relinquished  all  her  dower  rights,  and 
contracted  that  the  property  might  be  sold  and  converted  into 
money;  it  is  true,  if  she  had  paid  off  the  mortgage,  in  the  event 
that  she  survived  her  husband,  she  would  be  entitled  to  dower 
in  the  property;  but  the  effect  of  her  deed  was  that  the  real 
property  in  which  she  might  be  entitled  to  dower,  might  be 
converted  into  personal  property,  and,  when  thus  converted, 
her  inchoate  rights  would  terminate. 

"In  our  judgment,  the  surplus  money  arising  from  the 
sale  in  the  hands  of  the  trustees  was  personal  assets  which 
belonged  to  complainant's  husband,  upon  which  she  had  no 
claim  whatever,  and,  as  such,  it  was  liable  to  be  reached  by 
the  creditor  of  August  Kauffman  in  like  manner  as  personal 
property  which  he  had  acquired  from  any  other  source.  Land 
articled  to  be  sold  and  turned  into  money  is  reputed  money.*' 
By  executing  the  mortgage,  and  permitting  the  lands  to  be 
sold,  appellant  consented  that  the  real  estate  should  lose  its 
character,  as  such,  and  assume  the  character  of  personal 
property;  and  when  it  assumed  this  new  character,  it  would 
be  controlled  and  governed  by  the  laws  in  relation  to  personal 
and  not  real  property.  In  the  Indiana  case.  Dean  v.  Phillips,'*^ 
it  is  said:  We  do  not  perceive  how  Bennett's  wife  had  any 
interest  in  the  residue  of  the  money  after  paying  the  mortgage 
debt.  She  executed  the  mortgage  with  her  husband;  other- 
wise, had  she  survived  him,  she  might  have  been  entitled  to 

«2  Story  Eq.  §  1212,  «  yj  ind.  409. 


§    881]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1253 

one-third  of  the  land.  But  the  premises  have  been  sold  upon 
the  mortgage  to  which  she  was  a  party;  her  right  to  or  con- 
tingent interest  in  the  land  has  gone.  The  excess  of  the  money 
arising  from  the  sale  clearly  all  belongs  to  Bennett  and  not 
to  his  wife;  hence,  it  might  properly  be  applied  to  the  pay- 
ment of  his  debts.  In  Newhall  v.  Lynn  Savings  Bank,*^  the 
court  held  that  the  wife  of  the  owner  of  the  estate  subject  to 
a  mortgage,  valid  against  her,  has  no  right  as  against  her 
husband  or  his  assignee  in  bankruptcy  in  the  proceeds  of  sale 
of  the  estate  made  by  the  mortgagee  for  breach  of  condition, 
and  under  power  in  the  mortgage  deed."^° 

In  the  case  of  the  New  York  Life  Insurance  Company  v. 
Mayer,®^  it  was  held  that  the  claim  of  the  wife  of  a  mort- 
gagor, who  joined  in  the  execution  of  the  mortgage,  upon  the 
surplus  moneys  arising  on  a  foreclosure,  for  the  value  of  her 
inchoate  right  of  dower,  is  superior  to  the  claims  of  judg- 
ment creditors  of  the  mortgagor,  notwithstanding  the  fact 
that  there  was  a  provision  in  the  mortgage  for  the  return  of 
the  surplus,  if  any,  to  the  mortgagor,  his  heirs  or  assigns." 

§  881.  Investment  of  dower  in  surplus — Payment  of 
gross  sum. — It  is  thought  that  where  the  widow  of  a 
mortgagor,  or  owner  of  the  equity  of  redemption,  who  has 
answered  as  such  and  submitted  to  the  decree  of  the  court, 

«101  Mass.  432,  3  Am.  Rep.  387.  (N.  Y.)  386;  Hawley  v.  Bradford, 

60  See  ante,  §§  878,  879,  880.  9  Paige  Ch.    (N.  Y.)   200,  37  Am. 

51  19  Abb.  (N.  Y.)  N.  C.  92.  Dec.  390.     Contra,  Aikman  v.  Har- 

^'i  Butler  V.  Smith,  20  Ore.  126,  25  sell,  98  N.  Y.  186;  Moore  v.  Mayor, 

Pac.  381.    Set  Simar  V.  Canaday,  53  8    N.    Y.    110,    59    Am.    Dec.    473; 

N.  Y.  298,  13  Am.  Rep.  523;  Mills  v.  Frost  v.  Peacock,  4  Edw.  Ch.   (N. 

VanVoorhies,  20  N.  Y.  412;  Mat-  Y.)  678;  Titus  v.  Neilson,  5  Johns. 

thews  V.  Duryee,  3   Abb.    (N.  Y.)  Ch.    (N.   Y.)    453;   Bell  v.   Mayor, 

App.   Dec.  220,   affirming  45    Barb.  &c.  10  Paige  Ch.  (N.  Y.)  55. 

(N.  Y.)   69,   17  Abb.    (N.  Y.)    Pr.  But  it  is  thought  that  her  rights 

256;  Vartie  v.  Underwood,  18  Barb.  cannot  be  litigated  in  an  action  to 

(N.  Y.)   561;  Denton  v.  Nanny,  8  recover  the  fund,  in  a  case  where 

Barb.     (N.    Y.)     618;    Douglas    v.  she  is  not  a  party.    Butler  v.  Smith, 

Douglas,    11    Hun     (N.    Y.)    406;  20  Org.  126,  25  Pac.  381. 

Jackson  V.  Edwards,  7   Paige   Ch. 


1254  MORTGAGE    FORECLOSURES.  [§    882 

is  entitled  to  dower  in  the  surplus  proceeds  of  the  sale  of 
the  mortgaged  premises,  one-third  thereof  may  be  ordered 
to  be  invested  at  interest  for  her  benefit ;  ^^  or,  under  the  rules 
of  the  supreme  court,**  such  widow  may  consent  to  accept  a 
gross  sum  in  lieu  of  the  annual  interest  or  income  for  life 
from  the  one-third  so  invested,  and  such  gross  sum  shall  be 
estimated  according  to  the  then  value  of  an  annuity  of  five 
per  centum  on  the  principal  sum,  during  the  probable  period 
of  her  life  as  ascertained  from  the  Carlisle  Table  of  Mortal- 
ity.*'* 

Where  the  husband  is  living,  the  value  of  the  wife's  in- 
choate right  of  dower  is  ascertained  by  computing  the  value  of 
an  annuity  for  her  life,  in  one-third  of  the  proceeds  of  the 
estate  to  which  her  inchoate  right  of  dower  attaches,  and  de- 
ducting therefrom  the  value  of  a  similar  annuity  for  his  life; 
the  difference  between  these  two  sums  will  be  the  present  value 
of  her  inchoate  right  of  dower.*^ 

§  882.  Homestead  right  in  surplus. — It  has  been  held 
that  where  a  mortgaged  homestead  is  sold  for  more  than 
enough  to  pay  the  mortgage  debt,  the  surplus,  to  the  extent 
allowed  by  statute  for  a  homestead,  should  be  delivered  to 
the  debtor  for  the  purchase  of  another  homestead;  in  case 
of  his  death,  such  portion  should  be  invested  in  a  home  for 
his  widow  or  his  children."  It  is  believed  where  a  sale  is 
made  under  a  mortgage  containing  a  waiver  of  exemption, 
that  the  mortgagor  is,  nevertheless,  entitled  to  the  exemption 

^^Tabele  v.  Tahele,  1  Johns.  Ch.  (N.  Y.)    45;  Matthews  v.  Duryee, 

(N.  Y.)  45.  4   Keyes    (N.    Y.)    525;    Wager   v. 

54  N.  Y.  Supreme  Court  Rule  70.  Schuyler,  1  Wend.  (N.  Y.)  553. 

56  N.  Y.  Supreme  Court  Rule  70  5^  Jackson    v.    Edwards,   7    Paige 

See  Schell  v.  Plumb,  55  N.  Y.  592,  Ch.  (N.  Y.)  386,  408.     See  Doty  v. 

16  Abb.    (N.  Y.)    Pr.  N.  S.   19,  46  Baker,  11  Hun   (N.  Y.)  225;  Gor- 

How.   (N.  Y.)    Pr.  19;   Winslow  v.  don  v.  Tweedy,  7 A  Ala.  232,  49  Am. 

McCall,    32    Barb.     (N.    Y.)    249;  Rep.  813. 

Davis  V.  Standish,  26  Hun  (N.  Y.)  ^'^  McTaggert  v.  Smith,   14  Bush 

616;  Tabele  v.  Tabele,  1  Johns.  Ch.  (Ky.)   414. 


§    883]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1255 

allowed  by  law  to  heads  of  families  out  of  the  surplus  pro- 
ceeds of  such  sale,  as  against  subsequent  judgment  creditors.^' 
The  Illinois  court  of  appeals,  in  the  case  of  Trogden  v. 
Safford,^'  say  that  w4iere  the  mortgagee  purchases  the  home- 
stead of  the  mortgagor  at  a  sale  under  foreclosure,  he  cannot 
apply  the  surplus  on  other  claims  against  the  mortgagor,  as 
to  which  the  right  of  homestead  has  not  been  waived. 

§  883.  Where  claim  of  collateral  assignee  less  than 
mortgage. — A  mortgagee  holding  several  notes  secured 
by  mortgage  may  assign  the  security  to  an  assignee  of  one  of 
the  notes,  so  as  to  give  him  a  preference  in  the  application 
of  the  proceeds  realized  from  a  sale  of  the  mortgaged  prem- 
ises ;  and  where  the  assignment  of  the  mortgaged  premises 
purports  to  ''bargain,  sell  and  assign"  the  same  to  secure 
the  payment  of  the  note  so  assigned,  it  is  a  transfer  of  the 
entire  legal  estate  or  interest  of  the  mortgagee  therein,  and 
he  will  retain  only  an  equitable  interest  in  the  surplus  after 
satisfying  the  amount  due  to  the  assignee.^" 

Where  a  bond  and  mortgage  are  assigned  as  collateral 
security  for  a  loan,  with  an  agreement  on  the  part  of  the 
lender,  that  on  payment  of  the  mortgage  he  will  account  for 
the  excess  of  the  principal  over  and  above  the  amount  of  the 
loan,  and  the  mortgage  is  foreclosed  by  the  lender  without 
making  the  borrower  a  party  to  the  action  and  the  premises 
are  bid  in  by  the  lender,  the  equitable  interest  which  the 
borrower  had  in  the  mortgage  will  attach  to  the  land,  and  he 
will  be  entitled  to  the  surplus  in  case  of  a  sale  thereof  by  the 
lender  for  more  than  the  amount  of  his  claim. ^^ 

If  one  mortgagor  is  surety  for  another,  where  they  own 
undivided   shares   in   the   property,    the   surety   will    have   a 

58  Quinn's  Appeal,  86  Pa.  St.  447;  ^^  Dalton  v.  Smith,  86  N.  Y.  176; 
Hill  V.  Johnson,  29  Pa.  St.  362.               Hoyt  v.    Martense.    16   N.   Y.   231; 

59  21  111.  App.  240.  Slee  v.  Manhattan  Ins.  Co.  1  Paige 
^^Solberg    v.    Wright,    33    Minn.       Ch.  (N.  Y.)  48. 

224. 


1256  MORTGAGE    FORECLOSURES.  [§    884 

right  to  require  that  the  share  of  his  principal  shall  be  sold 
first  on  a  foreclosure,  if  enough  can  be  realized  in  that  way 
to  pay  the  mortgage  debt;  if  the  entire  premises  are  sold 
and  a  surplus  is  produced,  the  surety  will  be  entitled  to  have 
such  surplus,  to  the  extent  of  his  entire  undivided  share,  paid 
to  him.®'' 

§  884.  Purchase  of  part  of  premises  by  mortgagee. — 
It  has  been  said  that  where  one  who  holds  a  mortgage, 
purchases  an  absolute  title  to  a  portion  of  the  premises,  and 
afterwards  forecloses  the  mortgage  and  sells  the  whole  prem- 
ises under  a  decree,  he  will  be  entitled  in  the  distribution  of 
the  surplus,  not  to  the  amount  which  he  paid  for  the  portion 
purchased  by  him,  but  only  to  so  much  as  his  portion  ratably 
contributed  to  the  price  brought  by  the  whole  tract. ®^ 

§  885.  Interest  of  lessee  for  years  in  surplus. — Where 
a  tenant  for  years  holds  under  a  lease  without  covenants,  which 
is  subject  to  a  mortgage,  he  will  not  be  entitled  to  share  in 
the  surplus  arising  from  the  sale  upon  the  foreclosure  of  such 
mortgage.®*  But  a  lessee  for  years  of  mortgaged  premises, 
holding  under  a  lease  containing  a  covenant  for  quiet  enjoy- 
ment, is  entitled,  on  the  contrary,  to  receive  from  the  surplus 
moneys  arising  on  the  sale,  the  value  of  the  use  of  the  prem- 
ises during  the  remainder  of  his  term,  less  the  rents  reserved 
and  other  payments  to  be  made  by  him  under  the  lease. ®^ 

In  the  absence  of  proof  that  the  value  of  the  leasehold  is 
in  excess  of  the  rents  reserved,  or  that  it  has  such  value,  the 
lessee  of  mortgaged  premises  is  not  entitled  to  receive  any 

62  Erie  County  Sav.  Bank  v.  Roop,  ^3  Frost  v.  Peacock,  4  Edw.   Ch 

80  N.  Y.  591.    See  Bank  of  Albion  (N.  Y.)  678. 

V.   Burns,  46  N.  Y.   170;  Smith  v.  ^  Burr  v.  Stenton,  43  N.  Y.  462 

Townsend,  25  N.    Y.  479 ;  Vartie  v.  ^5  Clarkson  v.  Skidmore,  46  N.  Y 

Underwood,  18  Barb.  (N.  Y.)  561;  297;  Ely  v.  Collins,  45  Misc.  255.  91 

Neimcewicz  v.   Gahn,  3    Paige   Ch.  N.  Y.  Supp.  160. 
(N.    Y.)    614;    Loonier   v.    Wheel- 
wright, 3  Sandf.  Ch.   (N.  Y.)   135. 


§    886]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1257 

portion  of  the  surplus  arising  from  a  sale  thereof,  because  in 
the  absence  of  such  proof,  the  presumption  is  that  the  rent 
reserved  is  the  fair  value  of  the  use  and  that  no  injury  is 
sustained  by  the  lessee.®^  Where,  therefore,  a  lessee  and  the 
owner  of  the  equity  of  redemption  were  the  only  claimants 
for  the  surplus  arising  on  a  foreclosure  sale,  and  no  evidence 
was  produced  by  the  former  tending  to  show  that  the  lease- 
hold estate  had  any  value  in  excess  of  the  rents,  it  was  held 
that  the  whole  surplus  was  properly  awarded  to  the  owner.^' 

§  886.  Mechanic's  lien. — The  inchoate  rights  of  me- 
chanics and  material  men  under  the  statute  giving  them  liens, 
are  entitled  to  share  in  the  surplus  funds  arising  on  a  mort- 
gage foreclosure  sale,  although  such  liens  may  not  be  estab- 
lished by  judgment;^®  but  they  will  always  be  inferior  to  the 
lien  of  a  prior  bona  fide  mortgage.®^ 

The  delivery  and  acceptance  of  a  deed  to  premises,  "sub- 
ject to  all  contracts  outstanding  relating  to  said  premises 
and  buildings"  then  in  course  of  erection,  and  all  "moneys 
now  due  or  to  grow  due  on  account  of  said  contracts  or  either 
of  them,  and  all  incumbrances  of  whatsoever  nature  and  kind 
now  a  lien  upon  said  premises  or  any  part  thereof,"  has  been 
held  to  charge  the  premises  with  an  equitable  lien  in  favor 
of  the  mechanics  and  material  men  for  their  claims;  and  such 
lien  will  attach  to  the  surplus  moneys  arising  on  the  fore- 
closure of  a  prior  mortgage.'^" 

But  such  a  clause  in  a  deed  covers  only  claims  in  existence 

^^  Lark  in  v.  Misland,   100   N.   Y.  court,  after  the  expiration  of  one 

212;   Clarkson  v.  Skidmore,  46  N.  year,  where  the  premises  are  sold 

Y.  297,  303.  under  foreclosure,  see  Emigrant  In- 

^"^  Larkin   v.   Misland,   100  N.   Y.  dustrial  &c.  Bank  v.  Goldman,  75 

212.  N.  Y.  127. 

68  Livingston  v.   Mildrum,   19   N.  ^^  See  Oppenheimer  v.  Walker,  3 

Y.   440.      See   Bergen   v.   Snedeker,  Hun  (N.  Y.)  30.     See  also  Hall  v. 

8  Abb.  (N.  Y.)  N.  C.  50,  56.    As  to  Thomas,  111  N.  Y.  Supp.  979. 

the    right    to   the    surplus    under   a  '"^  Crombie  v.  Rosenstock,  19  Abb. 

mechanic's  lien  not  continued  by  the  (N.  Y.)  N.  C.  312. 


1258  MORTGAGE    FORECLOSURES.  [§    887 

at  the  time  of  the  execution  of  the  deed,  and  not  claims 
arising  pusuant  to  contracts  made  after  the  transfer.  It  is 
immaterial  that  such  claims  arise  upon  contracts  with  the 
husband  of  the  grantor  for  the  erection  of  the  building,  so 
that  the  grantor  is  not  personally  liable  for  their  payment ; 
the  consideration  for  the  equitable  liens  so  created  is  the  trans- 
fer of  the  land.'^ 

§  887.  Rights  of  cestuis  que  trust  in  surplus. — Bene- 
ficiaries are  entitled  to  share  in  the  surplus  arising  on  mort- 
gage foreclosure.  Thus,  it  has  recently  been  said  the  bene- 
ficiaries under  a  trust  deed  or  mortgage  on  lands  by  one  not 
holding  the  title  may  affirm  the  sale  of  the  mortgagee  and  re- 
cover the  proceeds  in  his  hands ;  in  such  case,  however,  the 
mortgagee  is  entitled  to  retain  the  expenses  of  the  sale  and 
any  payments  he  may  have  been  called  upon  to  make  for  the 
purposes  of  the  trust.'^ 

In  the  distribution  of  the  surplus  arising  from  the  sale  of 
mortgaged  premises  made  under  the  foreclosure  of  a  mort- 
gage executed  by  one  who  held  the  legal  title  to  the  premises 
as  trustee  ex  maleficio,  the  owner  of  the  equitable  title  under 
such  trust  ex  maleficio  is  entitled  to  claim  the  surplus  after 
the  payment  of  the  mortgage  debt,  to  the  exclusion  of  judg- 
ment creditors  of  the  mortgagor." 

Where  the  grantee  in  a  deed  of  trust  subsequently  conveyed 
the  premises  by  a  deed  of  warranty  and  afterwards  trans- 
ferred them  again  by  a  deed  of  trust,  the  beneficiary  in  the 
latter  knowing  of  the  warranty  deed,  and  upon  a  foreclosure 
under  the  first  incumbrance  there  was  a  surplus,  the  grantor 
being  insolvent  and  a  non-resident,  it  was  held  that  the  grantee 
in  the  warranty  deed  was  entitled  to  the  surplus  in  preference 
to  the  beneficiary  in  the  deed  of  trust.'* 

71  Crombie  v.  Rosenstock,  19  Abb.  '3  Landell's   Appeal,    105    Pa.    St. 

(N.  Y.)  N.  C.  312.  152. 

''^Re  Champion  (C.  A.)  1893,  1  '''^Johnson  v.  Wilson,  77  Mo.  639. 
Ch.   101. 


§    889]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1259 

§  888.  Lien  for  attorney's  fees  on  surplus. — The  lien 
of  an  attorney  on  a  judgment  for  his  fees  extends  to  the  sur- 
plus moneys  arising  on  a  foreclosure,  as  such  fees  are  a  part 
of  the  judgment,'*  and  will  be  protected.''^  In  the  case  of 
Atlantic  Savings  Bank  v.  Hetterick,'"'  the  order  of  reference 
for  the  distribution  of  the  surplus  moneys  on  a  foreclosure 
sale  directed  that  the  amount  due  to  the  claimant  thereof  be 
ascertained  by  the  referee,  and  also  the  amount  due  to  any 
other  person  having  a  lien  on  such  surplus  moneys.  The  court 
held  that  the  lien  of  the  attorney  who  procured  the  judgment 
for  the  claimant,  upon  which  he  founded  his  claim  to  the 
surplus  moneys  and  another  judgment  decreeing  it  to  be  paid 
out  of  such  moneys,  was  properly  sustained.'® 

§  889.  Disposition  of  surplus  moneys  not  applied  for. — 

The  New  York  Code  of  Civil  Procedure  '^  provides  that  "if 
there  is  any  surplus  of  the  proceeds  of  the  sale  of  mortgaged 
premises,  after  paying  the  expenses  of  the  sale  and  satisfying 
the  mortgage  debt  and  the  costs  of  the  action,  it  must  be  paid 
into  court  for  the  use  of  the  person  or  persons  entitled  there- 
to.®°     If  any  part  of  the  surplus  remains  in  court   for  the 

"^^  Atla)itic  Savings  Bank  v.  Het-  ings  Bank  v.  Hetterick,  5  T.  &  C. 

terkk,  5  T.  &  C.  (N.  Y.)  239.     In  (N.  Y.)  239. 
the  case  of  Kennedy  v.  Brown.  50  775  x.  &  C.  (N.  Y.)  239. 

Mich.  336,  the  mortgagee  bid  off  the  '^  The  claimant  having  appeared 

premises  on  foreclosure  at  a  figure  before  the  referee  and  been  heard, 

exceeding  the  amount  of  the  debt,  without  objecting  to  the  examina- 

costs,  taxes,  and  insurance  by  about  tion    of   the   attorney's   account   on 

$40;  the  mortgage  provided  for  an  v^rhich  his  demand  was  based,  it  was 

attorney's  fee  of  $50;  the  court  held  held,  that  the  proceeding  amounted 

that  the   mortgagee  was  bound  to  to  an  arbitration,  if  not  a  reference. 

pay  over  the  surplus  of  $40  to  the  to  determine  the  attorney's  demand, 

sheriff  for  the  benefit  of  the  owner  by  which  the  claimant  was  bound, 

of    the    equity   of    redemption,    and  Atlantic  Savings  Bank  v.  Hetterick, 

that  if  he  did  not  do  so,  the  latter  5  T.  &  C.  (N.  Y.)  239. 
could  sue  him  for  money  had  and  '^  N.  Y.  Code  Civ.  Proc.  §  1633. 

received  to  his  use.  ^^  The    surplus     moneys    derived 

''^Atlantic  Savings  Bank  v.  Hilcr,  from  a  sale  under  foreclosure,  be- 

3  Hun   (N.  Y.)   209;  Atlantic  Sav-  long  to  the  mortgagor  or  owner  of 


1260 


MORTGAGE    FORECLOSURES. 


[§  889 


period  of  three  months,  the  court  must,  if  no  application  has 
been  made  therefore,  and  may,  if  an  application  therefor  is 
pending,  direct  it  to  be  invested  at  interest,  for  the  benefit  of 
the  person  or  persons  entitled  thereto,  to  be  paid  upon  the 
direction  of  the  court."  *^ 

The  rules  of  the  supreme  court  ®^  provide  for  the  deposit 
and  investment  of  surplus  moneys,  the  taking  of  securities 
therefor,  and  the  inspection  of  the  county  treasurer's  and 
chamberlain's  accounts  thereof. 


the  equity  of  redemption,  and  not 
to  the  purchaser  on  the  foreclosure 
sale.  Day  v.  Town  of  New  Lots, 
11  N.  Y.  State  Rep.  361. 

81  N.  Y.  Code  Civ.  Proc.  §  1633. 
See  White  v.  Bogart,  73  N.  Y.  256; 
Dunning  v.  Ocean  Nat.  Bank,  61 
N.  Y.  497,  19  Am.  Rep.  293 ;  Mutual 
Life  Ins.  Co.  of  N.  Y.  v.  Trucht- 
nicht,  3  Abb.  (N.  Y.)  N.  C.  135; 
Tator  V.  Adams,  20  Hun   (N.  Y.) 


131 ;  Savings  Bank  of  Utica  v. 
Wood,  17  Hun  (N.  Y.)  133;  Hurst 
V.  Harper,  14  Hun  (N.  Y.)  280; 
Savings  Institution  v.  Osley,  4  Hun 
(N.  Y.)  657;  Oppenheimer  v. 
Walker,  3  Hun  (N.  Y.)  30;  At- 
lantic Savings  Bank  v.  Hiler,  5  T.  & 
C.  (N.  Y.)  239,  3  Hun  (N.  Y.) 
209. 

82  N.    Y.    Supreme   Court   Rules 
69,  70. 


CHAPTER  XXXIII. 

PROCEEDINGS    ON    SURPLUS    MONEYS. 

PRACTICE — DISTRIBUTION  BY  SURROGATE'S  AND  SUPREME  COURTS — APPLICA- 
TION FOR  SURPLUS — APPOINTING  REFEREE — HIS  POWERS  AND  DUTIES — 
WHAT  MAY  BE  LITIGATED — TESTIMONY  SIGNED — REFEREE's  REPORT — CON- 
FIRMATION— ORDER    FOR    DISTRIBUTION — APPEAL. 

§  890.  Distribution   of    surplus   by    surrogate. 

§  891.  Distribution   by   supreme   court. 

§  892.  Action  to   enforce   claim  to   surplus. 

§  893.  Recovering  surplus  wrongfully  paid. 

§  894.  Application  for  surplus  moneys. 

§  895.  Who  entitled  to  notice — How   served. 

§  896.  Certificate   and   proof   of   depositing   surplus. 

§  897.  Appointment  of  referee. 

§  898.  Order  of  reference  and  oath  of  referee. 

§  899.  Presenting  proof  of  claim. 

§  900.  Conduct  of  the   reference. 

§  901.  Powers  of  the  referee. 

§  902.  What  claims  may  be  litigated. 

§  903.  Extent  of  referee's   inquiry. 

§  904.  Right  of  claimant  not  filing  notice  to  appear. 

§  90S.  Testimony  to  be  signed  and  filed. 

§  906.  Referee's   report — Filing  same. 

§  907.  Exceptions  to  the  referee's  report. 

§  908.  Hearing  exceptions  to  report. 

§  909.  Confirmation  of  referee's  report. 

§  910.  Opening  and  setting  aside  referee's  report. 

§  911.  Appeal  from  order  for  distribution. 

§  890.  Distribution  of  surplus  by  surrogate. — The  New 
York  Code  of  Civil  Procedure  "  provides,  that  "where  real 
property,  or  an  interest  in  real  property,  liable  to  be  disposed 
of  as  prescribed  by  the  statute,  is  sold  in  an  action  or  a  special 
proceeding,   to  satisfy  a  mortgage  or  other  lien  thereupon, 

83  N.  Y.  Code  Civ.  Proc.  §§  2798.       2799. 

1261 


1262  MORTGAGE    FORECLOSURES.  [§    890 

which  accrued  during  the  decedent's  Hfe-lime,  and  letters 
testamentary  or  letters  of  administration  upon  the  decedent's 
estate,  were,  within  four  years  before  the  sale,**  issued  from 
a  surrogate's  court  of  the  state,  having  jurisdiction  to  grant 
them ;  the  surplus  money  must  be  paid  into  the  surrogate's 
court  from  which  the  letters  issued."  *^  "Where  money  is 
thus  paid  into  a  surrogate's  court,  and  a  petition  for  the  dis- 
position of  property,  as  prescribed  by  the  statute,  is  pending 
before  him,  or  is  presented  at  any  time  before  the  distribution 
of  the  money;  the  decree  may  provide  that  the  money  be  paid 
to  the  executor  or  administrator  to  be  applied  by  him  as  if 
it  was  the  proceeds  of  the  decedent's  real  property,  sold  pur- 
suant to  the  decree." 

These  sections  of  the  Code  of  Civil  Procedure  are  very  sim- 
ilar in  language  to  those  of  the  former  statute.*®  The  former 
statute  was  held  not  to  apply  to  a  foreclosure  by  advertise- 
ment," and  for  that  reason  it  is  thought  by  some  that  these 
sections  of  the  Code  do  not  now  apply,  where  a  foreclosure 
is  conducted  by  advertisement.  It  is  certain,  however,  that 
whether  these  sections  do  or  do  not  apply  to  such  proceedings, 
the  surplus  proceeds  of  a  sale  made  under  a  decree  of  fore- 
closure, rendered  more  than  four  years  after  a  grant  of  letters 
testamentary  or  of  administration,  are  to  be  distributed  in  the 

84  The  words  "within  four  years  Anderson,  66  Misc.  593,  122  N.  Y. 

before  the  sale,"  as  used  in  the  Code  Supp.  218. 

Civ.    Proc.    §   2798,  and   the  words  8^  ggg  DiLorenzo  v.  Dragonc,  25 

"making  the  sale"  in  Laws  of  1871,  Misc.    26,    54    N.    Y.    Supp.    420; 

chap.  834, — relating  to  the  payment  Powell  v   Harrison,   88   App.    Div. 

into    the    proper    surrogate's    court  228.  85  N.  Y.  Supp.  452.     See  also 

of    surplus   moneys   arising   on   the  Washington  Life  Ins.  Co.  v.  Clark, 

sale  of  real  property,  if  letters  tes-  79  App.   Div.   160,  79  N.  Y.   Supp. 

tamentary  or  of  administration  have  610. 

been  issued  within  a  certain  time, —  86  See   Laws   of    1867,   chap.   658, 

refer  to  the  date  of  the  sale,  and  as  amended  by  Laws  of  1870,  chap, 

not   to   the   commencement   of    the  170. 

action   or  proceedings   resulting   in  87  ggg    Loucks    v.    VanAllen.    11 

the  sale;  White  v.  Poillon.  25  Hun  Abb.   (N.  Y.)   Pr.  N.  S.  427;  Ger- 

(N.    Y.)    69.      See    also    Lord    v.  man  Sav.  Bank  v.  Sharer,  25  Hun 


§    891]  PROCEEDINGS    ON    SURPLUS     MONEYS.  1263 

action,  though  the  judgment  directing  the  sale  was  entered 
within  the  four  years. ^* 

Under  the  Minnesota  statute,  on  the  foreclosure  by  adver- 
tisement of  a  mortgage  on  real  estate,  a  junior  mortgagee  is 
an  "assign"  of  the  mortgagor,  so  as  to  be  entitled,  on  demand, 
to  have  his  mortgage  paid  out  of  the  surplus,  so  far  as  it  will 
suffice.*^ 

§  891.  Distribution  by  supreme  court. — The  Nev^  York 
Code  of  Civil  Procedure  provides,  that  "an  attorney  or  other 
person  who  receives  any  money,  arising  upon  a  sale,  made  as 
prescribed  in  the  title  regulating  foreclosures  by  advertise- 
ment, must,  within  ten  days  after  he  receives  it,  pay  into  the 
supreme  court  the  surplus,  exceeding  the  sum  due  and  to  be- 
come due  upon  the  mortgage,  and  the  costs  and  expenses  of 
the  foreclosure,  in  like  manner  and  with  like  effect,  as  if  the 
proceedings  to  foreclose  the  mortgage  were  taken  in  an  action, 
brought  in  the  supreme  court,  and  triable  in  the  county  where 
the  sale  took  place."  ^° 

The  Code  provides  further,  that  "a  person  who  had,  at 
the  time  of  the  sale,  an  interest  in  or  lien  upon  the  property 
sold,  or  a  part  thereof,  may,  at  any  time  before  an  order  is 
made,  as  prescribed  by  the  statute,^^  file  in  the  office  of  the 
clerk  of  the  county,  where  the  sale  took  place,  a  petition  stat- 
ing the  nature  and  extent  of  his  claim,  and  praying  for  an 

(N.  Y.)  409;  Fliess  v.  Buckley,  24  the  payment  of  a  gross  sum  in  lieu 

Hun  (N.  Y.)  514.  thereof.      Zahrt's    Estate,    11    Abb. 

88  See  White  v.  Poillon,  25  Hun  (N.  Y.)    N.  C.  225,  citing  Arrow- 

(N.  Y.)  69.     Upon  the  distribution  smith   v.    Arrowsmith,   8   Hun    (N. 

in     the     surrogate's     court,     under  Y.)   606;  In  re  Igglesden,  3  Redf. 

?  2799,  of  surplus  moneys  arising  on  (N.  Y.)  375,  378.     See  ante,  §  861. 

a  foreclosure,  where  there  is,  under  89  Fuller  v.  Langum,  Z7  Minn.  74, 

a  will,  a  life  tenancy  in  the  lands  33  N.  W.  132. 

sold,  the  fund  must  be  invested  and  ^0  t^;^    y.  Code  Civ.   Proc.  §  2404. 

the   income  paid  to  the  beneficiary  See  ante,  §  838. 

until  the  determination  of  the  life  ^^  See    N.    Y.    Code    Civ.    Proc. 

estate.    The  surrogate  cannot  order  §  2407 


1264  MORTGAGE    FORECLOSURES,  [§    892 

order,  directing  the  payment  to  him  of  the  surplus  money,  or 
a  part  thereof."®^ 

"A  person  filing  a  petition,  as  prescribed  in  the  above  sec- 
tion, may,  after  the  expiration  of  twenty  days  from  the  day 
of  sale,  apply  to  the  supreme  court,  at  a  term  held  within  the 
judicial  district,  embracing  the  county  where  his  petition  is 
filed,  for  an  order,  pursuant  to  the  prayer  of  his  petition. 
Notice  of  the  application  must  be  served,  in  the  manner 
prescribed  by  statute  for  the  service  of  a  paper  upon  an 
attorney  in  an  action,  upon  each  person,  who  has  filed  a  like 
petition,  at  least  eight  days  before  the  application;  and  also 
upon  each  person,  upon  whom  a  notice  of  sale  was  served,  as 
shown  in  the  affidavit  of  sale,  or  upon  his  executor  or  adminis- 
trator. But,  if  it  is  shown  to  the  court,  by  affidavit,  that  ser- 
vice upon  any  person,  required  to  be  served,  cannot  be  so 
made  with  due  diligence,  notice  may  be  given  to  him  in  any 
manner  which  the  court  directs. "^^ 

§  892.  Action  to  enforce  claim  to  surplus. — A  party 
entitled  to  the  surplus  moneys  arising  from  a  sale  on  fore- 
closure may  maintain  an  action  therefor.'*  Thus,  where  an 
attaching  creditor  recovered  a  judgment,  and  the  land  at- 
tached was  sold  on  a  prior  mortgage  under  a  power  of  sale 
contained  therein,  it  was  held  that  the  attaching  creditor 
could,  by  an  action  in  equity,  enforce  his  lien  against  the  sur- 
plus proceeds  of  the  sale  remaining  in  the  hands  of  the  first 
mortgagee.®^    And  it  has  been  held,  that  after  the  surplus  has 

92  N.  Y.  Code  Civ.  Proc.  §  2405.       uted  by  the  surrogate's  court,  con- 

93  N.  Y.  Code  Civ.  Proc.  §  2406.  tract  creditors  are  in  no  better  posi- 
9*  See  Cope  v.  Wheeler,  41  N.  Y.       tion  to  assert  any  further  equitable 

303,   308;  Matthews  v.  Duryee,  45  hen    against    moneys    arising    from 

Barb.  (N.  Y.)  69;  Bevierv.  Schoon-  the  sale  of  a  decedent's  real  estate, 

maker,  29  How.    (N.  Y.)    Pr.  411;  than  they  would  be  if  he  were  liv- 

Doyle  V.  West,  60  Ohio  St.  438,  54  ing.     Delafield   v.    White,    19   Abb. 

N.  E.  469.     The  remedy  of  parties  (N.  Y.)  N.  C.  104,  109,  7  N.  Y.  S. 

having  a  lien  on  the  surplus,  is  by  R    301. 

motion    and    not    by    action,     and  ^5  Wiggin  v.  Heywood,  118  Mass. 

except  where  the  surplus  is  distrib-  514. 


§    892]  PROCEEDINGS    ON    SURPLUS    MONEYS,  1265 

been  paid,  under  an  order  of  the  court,  to  an  assignee  of  the 
mortgagor,  if  the  widow,  who  neglected  to  appear  in  the  fore- 
closure, was  not  notified  of  the  reference  for  the  distribution 
of  the  surplus,  she  can  maintain  an  action  against  such  as- 
signee to  recover  her  dower  in  the  surplus.^^ 

Where  a  surplus  arises  upon  the  foreclosure  of  a  first 
mortgage,  the  claims  thereon  of  a  second  mortgagee  and  of 
judgment  creditors  may  be  determined  before  a  referee  ap- 
pointed by  the  court  in  w^iich  the  judgment  of  foreclosure 
w-as  rendered,  and  an  action  cannot  be  maintained  for  that 
purpose. 

A  mortgagee  on  recovering  a  judgment  of  deficiency  against 
the  administrators  of  a  deceased  mortgagor,  cannot  maintain 
an  action  to  have  his  claim  declared  a  lien  on  the  surplus 
arising  on  the  foreclosure  of  a  mortgage  on  other  lands  given 
by  the  same  mortgagor  to  another  mortgagee ;  his  only  remedy, 
aside  from  that  against  the  personal  estate  of  the  decedent, 
is  by  an  action  n'^;ainst  the  mortgagor's  heirs  or  devisees;  if 
they  are  insolvent,  the  court  may  direct  the  surplus  to  be  held 
and  applied  to  the  judgment.^* 

The  supreme  court  of  Massachusetts,  in  the  case  of  Johnson 
V.  Cobleigh,*^  say  that  on  a  sale,  under  a  power  in  a  mortgage, 
of  lands  in  which  another  has  purchased  the  equity  of  redemp- 
tion on  a  sale  under  execution  against  the  mortgagor,  the 
debtor  is  entitled  to  so  much  of  the  surplus  as  exceeds  the 
amount  he  would  have  been  obliged  to  pay  to  redeem  the 
equity  of  redemption;  and  if  no  one  else  is  interested  in  the 
fund  he  is  entitled  to  recover  the  surplus  in  a  legal  action 
for  money  received  by  the  creditor  to  his  use.^ 

The  mortgagee  or  party  bidding  does  so  at  his  peril.  If  he 
bids  more  than  the  amount  due,  including  expenses  of  sale. 

9«  Matthews  v.  Duryee,  45  Barb.  99  152  Mass.  17,  25  N.  E.  73. 

(N.  Y.)  69.  1  See    also    Knowles   v.    Sullivan, 

^Fliess  V.  Buckley,  90  N.  Y.  286.       182  Mass.  318,  65  N.  E.  389. 

^^FHess  V.  Buckley,  24  Hun   (N. 
Y.)  514.  aff'd  90  N.  Y.  286. 
Mort.  Vol.  II.— 80. 


1266  MORTGAGE    FORECLOSURES.  [§    893 

he  must  answer  for  the  surplus,^  whether  the  property  is 
really  worth  more  or  less  than  the  amount  due  or  the  sum 
bid.^  The  test  is,  not  the  value  of  the  property,  but  the 
amount  bid. 

§  893.  Recovering  surplus  wrongfully  paid. — It  is  be- 
lieved that  where  surplus  moneys  have  been  paid  to  a  person 
not  entitled  thereto,  under  an  order  irregularly  obtained,  the 
court  has  authority  by  a  summary  proceeding  to  compel  such 
person  to  restore  the  fund  thus  irregularly  obtained  without 
the  proper  order  of  the  court.* 

The  supreme  court  of  Minnesota,  in  the  case  of  Fuller  v. 
Langum,^  say  that  an  officer  making  sale  on  foreclosure  of 
a  senior  mortgage,  and  receiving  the  surplus  knowing  of  the 
junior  mortgagee's  right,  who  immediately  pays  the  surplus 
to  the  mortgagor,  becomes  liable  to  the  junior  mortgagee. 
And  it  is  said  that  agreements  and  assurances  made  by  the 
trustee  in  a  trust  deed  that  the  surplus  may  be  applied  upon 
debts  of  the  mortgagor  when  the  deed  expressly  provides 
that  it  shall  be  paid  to  the  mortgagor,  are  not  ratified  by  the 
latter's  bringing  suit  against  the  purchaser  for  the  surplus.® 

§  894.  Application  for  surplus  moneys. — In  New  York 
on  filing  the  referee's  report  of  the  sale,  "any  party  to  the 
suit,  or  any  person  who  had  a  lien  on  the  mortgaged  premises 
at  the  time  of  the  sale,  upon  filing  with  the  clerk  where  the 
report  of  sale  is  filed  a  notice,  stating  that  he  is  entitled  to  such 
surplus  moneys  or  some  part  thereof,  and  the  nature  and 
extent  of  his  claim,  may  have  an  order  of  reference,  to  ascer- 
tain and  report  the  amount  due  to  him,  or  to  any  other  person, 
which  is  a  lien  upon  such  surplus  moneys,  and  to  ascertain  the 

^  Moody  V.  Northwestern  &  Pa-  Loan  Ass'c.  67  Minn.  151,  69  N.  W. 

cific  Hypotheek  Bank,  20  Wash.  413,  718. 

55  Pac.  568;  Babcock  v.  American  ^  Bur  chard   v.   Phillips,    11    Paige 

Savings    &   Loan   Ass'c.   67    Minn.  Ch.  (N.  Y.)  66,  70. 

151,  69  N.  W.  718.  537  Minn.  74.  33  N.  W.  122. 

3  Babcock  V.  American  Savings  &  ^  Gair  v.  Tuttle,  49  Fed.  198. 


§    894]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1267 

priorities  of  the  several  liens  thereon;  to  the  end  that,  on  the 
coming  in  and  confirmation  of  the  report  on  such  reference, 
such  further  order  may  be  made  for  the  distribution  of  such 
surplus  moneys  as  may  be  just.  The  referee  shall,  in  all  cases, 
be  selected  by  the  court. ''^ 

Questions  of  priority  between  parties  having  claims  upon 
the  equity  of  redemption  may  be  properly  litigated  upon  the 
application  for  the  surplus  after  it  has  been  paid  into  court;  ^ 
but  until  it  is  ascertained  that  there  is  a  surplus,  such  parties 
should  not  be  permitted  to  litigate  their  claims  as  between 
themselves.^ 

An  application  for  surplus  moneys,  made  either  by  petition 
or  on  motion,  will  be  fatally  defective,  unless  it  establishes  a 
prima  facie  right  to  a  part  at  least  of  the  surplus;  and  it  does 
not  do  this  unless  it  shows  how  the  parties  cited  claim  an 
interest  in  the  mortgaged  lands.^° 

In  those  cases  where  the  judgment  and  decree  of  fore- 
closure of  a  mortgage  and  ordering  the  sale  of  the  mortgaged 
property,  omits  a  provision  directing  what  disposition  shall 
be  made  of  any  surplus  remaining  after  the  costs  and  liens 
are  paid  from  the  proceeds  of  the  sale,  will  not  work  a  reversal 
of  the  judgment,  but  the  court  may,  upon  application  after 
judgment,  direct  the  payment  of  the  surplus  to  any  party 
entitled  thereto. ^^  Where  a  junior  lien  holder  has  laid  specific 
claim  to  any  rents  that  a  receiver  appointed  in  foreclosure 
proceedings  might  collect,  before  the  lands  are  leased  pending 
the  proceedings,  the  court  should  direct  the  surplus  of  the  rent 
remaining  after  satisfying  the  mortgage  lien  to  be  held  by 
the  receiver  subject  to  the  further  order  of  the  court,  until 
after  the  determination  of  the  suit  of  such  lien-holder  to  es- 

'N.  Y.   Supreme  Court  Rule  64.  57     Mich.     198.       See    Broeker    v. 

8  Schenck    v.    Conover,    13    N.   J.  Morris,  as  sheriff,  etc.  42  Ind.  App. 
Eq.   (2  Beas.)  31,  78  Am.  Dec.  95.  417,  85  N.  E.  982. 

9  Union  Ins.  Co.  v.  VanRensselcer,  ^^  Brier  v.  Brinkman,  44  Kan.  570, 
4  Paige  Ch.  (N.  Y.)  85.  24  Pac.  1108. 

^^  Allen  V.  Wayne  Circuit  Judges, 


1268  MORTGAGE    FORECLOSURES.  [§    895 

tablish  his  Hen.^^  In  case  of  the  death  of  the  mortgagor,  and 
no  administration  upon  his  estate  for  seventeen  months  alter 
such  death,  on  the  sale  of  the  mortgaged  premises  his  heirs 
will  be  given  the  surplus. ^^ 

The  Missouri  court  of  appeals,  in  the  case  of  Perkins  v. 
Heiser,^*  say  that  a  party  purchasing  property  under  a  deed 
of  trust  has  no  right  to  have  any  portion  of  the  surplus  aris- 
ing from  that  sale  applied  to  the  payment  of  a  prior  mechanics' 
lien  judgment. 

§  895.  Who  entitled  to  notice — How  served. — "The 
owner  of  the  equity  of  redemption,  and  every  party  who 
appeared  in  the  cause,  or  who  shall  have  filed  a  notice  of 
claim  with  the  clerk,  previous  to  the  entry  of  the  order  of 
reference,  shall  be  entitled  to  service  of  a  notice  of  the  appli- 
cation for  the  reference,  and  to  attend  on  such  reference,  and 
to  the  usual  notices  of  subsequent  proceedings  relative  to 
such  surplus.^^  But  if  such  claimant  or  such  owner  has  not 
appeared,  or  made  his  claim  by  an  attorney  of  this  court,  the 
notice  may  be  served  by  putting  the  same  into  the  post-office, 
directed  to  the  claimant  at  his  place  of  residence,  as  stated  in 
the  notice  of  his  claim,  and  upon  the  owner  in  such  manner 
as  the  court  may  direct. "^^ 

§  896.  Certificate  and  proof  of  depositing  surplus. — 

On  an  application   for  the  distribution  of   the   surplus,   the 

12  Weiss  V.  Neel  (Ark.)  14  S.  W.  See  Franklin  v.  VanCott,  11  Paige 

1097.  Ch.    N.    Y.    129;    Hulbert   v.    Mc- 

^^Snow  V.  Warwick  Sav.  Inst.  17  Kay,  8  Paige  Ch.   (N.  Y.)  652;  In 

R.  I.  66,  20  Atl.  94.  re  Solomon,  4  Redf.   (N.  Y.)  509; 

1*34  Mo.  App.  465.  Allen  v.   Wayne  Circuit  Judges,  57 

^^  Allen  V.  Wayne  Circuit  Judges,  Mich.  198;  Smith  v.  Smith,  13  Mich. 

57  Mich.   198,  23  N.  W.  728.     See  258.     For  service  of  notice  in  ap- 

P^an  Voast  v.  dishing,  32  App.  Div.  plication  for  distribution  of  surplus 

116,  52  N.  Y.  Supp.  934.     See  also  money  in  foreclosure  by  advertise- 

DeLorenso  v.  Dragone,  25  Misc.  26,  ment   see    N.    Y.    Code    Civ.    Proc. 

54  N.  Y.  Supp.  420.  §  2406. 

16  N.  Y.  Supreme  Court  Rule  64. 


§    897]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1269 

moving  party  should  produce  to  the  referee  the  certificate 
of  the  county  treasurer  or  of  the  chamberlain  of  New  York, 
if  the  suit  is  pending  there,  or  of  the  person  with  whom  tlie 
surplus  is  required  to  be  deposited,  either  by  law  or  by  the 
decree  of  the  court,  showing  the  amount  thereof;  "  and  show- 
ing also,  that  no  notice  of  claim  to  such  surplus  was  annexed 
to  the  report  of  sale,  and  that  no  claim  to  the  same  was  filed 
previous  to  the  order  of  reference;  or,  if  claims  have  been 
filed,  the  certificate  should  set  forth  the  names  of  the  claim- 
ants, and  of  their  attorneys,  if  any,  and  their  places  of  resi- 
dence." 

The  party  moving  for  the  reference  should  also  show  by 
affidavit,  what  unsatisfied  liens  appear  by  the  official  searches 
used  in  the  progress  of  the  action,  where  there  are  any,  and 
what  other  unsatisfied  liens  are  known  to  exist.^^ 

§  897.  Appointment  of  referee. — Upon  the  filing  of  a 
claim  to  the  surplus  moneys  by  a  party  to  the  suit,  or  by 
any  person  who  claims  an  interest  in  such  surplus,  the  court 
may  appoint  a  referee  to  ascertain  and  determine  the  rights 
of  the  several  claimants.^"  Such  a  reference  is  not  a  collat- 
eral action ;  "  it  is  a  special  proceeding,^^  and  decides  direct 
issues  necessary  to  be  determined  before  the  court  can  finally 
and  completely  distribute  the  surplus  arising  from  the  the  sale 
of  the  mortgaged  premises.^^ 

Where  there  are  surplus  moneys  in  the  hands  of  a  mort- 
gagee, arising  upon  the  foreclosure  of  a  mortgage  by  adver- 

1'  N.  Y.  Supreme  Court  Rules  61,  Montclair  R.  R.   Co.  26  N.  J.   Eq.. 

64.  (11  C.  E.  Gr.)  260. 

^^Hulbert  v.  McKay,  8  Paige  Ch.  ^^  Mutual  Life  Ins.  Co.  v.  Bowen, 

(N.  Y.)  651.    See  Franklin  v.  Van-  47  Barb.   (N.  Y.)  618. 

Cott,n  Paige  Ch.  (N.  Y.)  129.  ^^  Mutual   Life    Ins.    Co.   v.    An- 

19  N.  Y.  Supreme  Court  Rule  64.  tJiony,  23   N.   Y.   Week.    Dig.   427 ; 

20  According    to    the    practice    in  VcUeman  v.  Rolirig,  193  N.  Y.  439, 
some    courts    such    a    reference    is  86  N.  E.  476. 

allowed  as  a  matter  of  course  ;  but  23  Mutual  Life  I  us.  Co.  v.  Bowen, 

in  others,  it  is  allowed  only  on  ap-       47  Barb.  (N.  Y.)  618 
plication    upon    notice.       Ward    v. 


1270  MORTGAGE    FORECLOSURES.  [§    898 

tisement.  and  two  separate  actions  have  been  brought  by  judg- 
ment creditors  of  the  mortgagor  to  have  such  surplus  appHed 
towards  the  payment  of  their  respective  judgments,  and  a 
reference  has  been  ordered  to  determine  to  whom  such  sur- 
plus shall  be  paid,  and  neither  party  appeals  from  such  order, 
or  applies  for  an  order  requiring  the  referee  to  report  the  evi- 
dence, the  proceeding  must  be  treated  in  all  respects  as  a  refer- 
ence made  in  pursuance  of  the  supreme  court  rule  to  settle 
claims  to  surplus  moneys  in  foreclosure  cases.  By  neglect- 
ing to  appeal  from  such  order  of  reference,  both  parties  tacit- 
ly consent  to  that  method  of  determining  their  respective 
rights.^* 

§  898.  Order  of  reference  and  oath  of  referee. — The 
New  York  Code  of  Civil  Procedure  ^'  provides,  that  "upon 
the  presentation  of  the  petition,  with  due  proof  of  notice 
for  application,  the  court  must  make  an  order,  referring  it 
to  a  suitable  person,  to  ascertain  and  report  the  amount  due 
to  the  petitioner,  and  to  each  other  person,  which  is  a  lien 
upon  the  surplus  money;  and  the  priorities  of  the  several 
liens  thereupon.  Upon  the  coming  in  and  confirmation  of  the 
referee's  report,  the  court  must  make  such  an  order,  for  the 
distribution  of  the  surplus  money,  as  justice  requires." 

The  supreme  court  of  Michigan,  in  the  case  of  Allen  v. 
Wayne  Circuit  Judges,^®  say  that  where  a  surplus  arises  on 
a  mortgage  foreclosure,  to  which  a  claim  is  made,  the  petition 
for  the  reference  required  in  such  case  is  fatally  defective  if 
it  does  not  show  how  the  parties  cited  are  related  to  the 
mortgaged  lands. 

The  referee  in  a  proceeding  for  the  distribution  of  surplus 
moneys,  before  proceeding  to  examine  the  certificates  or  to 
receive  evidence,  should  be  sworn  faithfully  and  fairly  to  try 
the  issues  referred  to  him,  and  to  make  a  just  and  true  report, 

24  Kirby  v.   Fitzgerald,  31   N.   Y.  25  §  2407. 

417.  26  57  Mich.  198,  23  N.  W.  728. 


§    899]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1271 

according  to  the  best  of  his  understanding;^''  the  neglect  of 
the  referee  to  take  such  oath,  is  not  a  fatal  error,  however, 
and  the  omission  may  be  subsequently  supplied. ^^  But  where 
all  the  parties  are  of  age  and  represented  at  the  hearing  either 
in  person  or  by  attorney,  they  may  expressly  waive  the 
referee's  oath,  either  orally  or  in  writing.^' 

§  899.  Presenting  proof  of  claim. — In  all  proceedings 
on  a  reference  to  ascertain  claims  and  liens  upon  surplus 
moneys  in  a  foreclosure  action,  the  general  rules  of  evidence 
governing  courts  on  the  trial  of  an  action  apply,  and  they 
cannot  be  changed  by  an  order  of  the  court  appointing  the 
referee.'" 

The  parties  prosecuting  a  reference  for  the  distribution  of 
surplus  moneys,  must  establish  their  respective  claims  and  the 
amounts  thereof  before  the  referee,  in  the  same  manner  as  is 
required  of  creditors  coming  in  under  a  decree  in  the  settle- 
ment of  the  estate  of  an  insolvent  debtor;  the  referee  should 
examine  the  parties  upon  oath  concerning  their  respective 
claims.'^ 

In  a  case  where  the  claimants  offered  in  evidence  a  tran- 
script of  a  judgment  recovered  by  them,  in  an  action  com- 
menced against  a  person  of  the  same  name  as  the  owner 
of  the  equity,  it  was  held  that  there  was  a  presumption  that 
the  owner  of  the  equity  and  the  judgment  debtor  were  the 
same  person. ^^ 

Under  the  former  chancery  rules  the  correct  practice,  where 
a  person   had   an   equitable   lien   upon   the   surplus   moneys, 

27  N.  Y.  Code  Civ.  Proc.  §  1016.  31  Htilbert  v.  McKay,  8  Paige  Ch. 

28  N.  Y.  Code  Civ.  Proc.  §  721,  (N.  Y.)  651.  See  DeRuyter  v.  St. 
subdivision  12.  See  Mutual  Life  Peter's  Church,  2  Barh.  Ch.  (N.Y.) 
Ins.  Co.  V.  Anthony,  23  N.  Y.  Week.  555.  A  referee  appointed  to  take 
Dig.  427.  and  report  testimony,  is  not  bound 

29  N.  Y.  Code  Civ.   Proc.  §   1016.       to    take    irrelevant    testimony.      In 
^'^  Mutual  L.  Ins.  Co.  v.  Anthony,       re  Silvcrnail.  45  Hun   (X.  Y.)  575 

50  Hun  (N.  Y.)  101,  19  N.  Y.  S.  R.  ^^  Bowery  Sar.  Bank  v.  Keenan, 

38.  14  New  York  Week.  Digest,  143. 


1272  MORTGAGE    FORECLOSURES.  [§    900 

was  to  deliver  a  notice  of  his  claim  to  the  master  who  made 
the  sale,  or  to  file  it  with  the  clerk  in  whose  office  the  sur- 
plus moneys  were  deposited  by  the  master;  or,  in  case  an 
order  of  reference  was  entered  upon  the  application  of  some 
other  claimant  before  he  became  aware  of  his  rights,  to  ao- 
pear  before  the  master,  upon  the  reference,  and  to  present 
and  establish  his  claim  there.  If  he  neglected  to  do  this,  with- 
out a  sufficient  excuse,  the  court  would  not  hear  his  claim  to 
such  surplus  moneys  upon  a  petition.^^ 

But  now  any  party  to  the  suit,  or  any  person  not  a  party  to 
the  suit,  who  has, a  lien  on  the  mortgaged  premises  at  the 
time  of  the  sale,  is  entitled  to  appear  before  the  referee  and 
to  prove  his  claim.^*  A  plaintiff  who  holds  mortgages  or 
other  liens  which  are  junior  to  the  mortgage  foreclosed,  is 
entitled  to  appear  and  prove  such  liens  the  same  as  any  other 
party  to  the  action  or  any  other  holder  of  a  lien.^^ 

§  900.  Conduct  of  the  reference. — The  New  York  Code 
of  Civil  Procedure  and  the  rules  of  the  supreme  court  do 
not  prescribe  the  general  powers  of  the  referee  on  a  refer- 
ence for  the  distribution  of  surplus  moneys.^®  The  object 
of  such  a  proceeding  is  to  ascertain  the  amount  due  to  each 
of  the  persons  having  liens  upon  the  surplus  and  the  prior- 
ities of  such  liens,  in  order  that  on  the  coming  in  of  the  re- 
port, the  court  may  make  an  order  for  the  distribution  of 
such  fund."  The  proceedings  on  such  a  reference  are  sim- 
ilar to  those  taken  earlier  in  the  foreclosure  to  compute 
the  amount  due  on  the  mortgage. 

33  DeRuyter  v.  St.  Peter's  Church,  36  n.  y.  Code  Civ.  Proc.  §   1018, 

2  Barb.  Ch.   (N.  Y.)  555.  applies  only  to   the  trial  of   issues 

^^ Field    V.    Hawxhurst,   9    How.  joined  in  an  action. 

(N.  Y.)  Pr.  75.  37  See  Laws  of   1868,   chap.  804, 

^^ Mutual  Life  Ins.  Co.  of  N.  Y.  §  3.     (Repealed  by  Code  Civ.  Proc. 

V.  Truchtnicht,  3  Abb.   (N.  Y.)   N.  §  4.) 
C.  135.    See  White  v.  Shirk,  20  Ind. 
App.  589,  51  N.  E.  126.     See  ante, 
§  843. 


§    901]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1273 

The  referee  appointed  in  proceedings  to  distribute  the  sur- 
plus, is  a  substitute  for  the  former  master  in  chancery  under 
the  old  chancery  practice,  and  his  general  powers  and  duties, 
not  being  prescribed  by  statute  or  by  the  rules  of  the  supreme 
court  are  the  same  as  those  possessed  by  a  master  in  chancery, 
and  that  part  of  the  former  practice,  which  is  not  inconsistent 
with  the  Code,  is  thought  to  be  still  in  force  in  its  application 
to  such  references. ^^ 

§  901.  Powers  of  the  referee. — The  proceedings  on  a 
reference  to  ascertain  the  priority  of  liens  on  surplus  moneys 
are  a  part  of  the  original  action;  the  reference  is  not  a  col- 
lateral matter,  and  any  issue  may  be  litigated  in  it,  which 
must  be  determined  by  the  court  before  the  whole  of  the 
fund  can  be  fully  and  completely  distributed.^^  Thus,  it  has 
been  held  that  the  referee  has  authority  to  inquire  into  the 
validity  of  conveyances  or  liens;  and  such  conveyances  as 
well  as  liens  may  be  attacked  as  fraudulent ;  *°  he  also  has 
power  to  examine  into  questions  of  usury ;  ^^  but  he  cannot 
examine  into  an  allegation  of  usury  as  against  a  prior  judg- 
ment.*^ 

A  referee  is  authorized  to  make  an  equitable  adjustment 
of  all  claims  to  the  surplus  moneys.  He  has  full  power  to 
hear  all  the  evidence  that  may  be  offered  affecting  the  matters 
in  controversy.  The  reference  is  provided  to  afford  an 
opportunity  to  the  parties  interested  to  litigate  and  dispose 
of  their  claims  and  liens  upon  the  surplus.     He  may  receive 

^^Ketchum  v.  Clark,  22  Barb.  (N.  ^^  Fliess  v.  Buckley,,  90  N.  Y.  288; 

Y.)     319;    Palmer    v.    Palmer,    13  Bergen  v.   Carman,   79   N.   Y.    146, 

How.   (N.  Y.)   Pr.  363;  Van  Zandt  citing  Halsted  v.  Halsted,  55  N.  Y. 

V.  Cobb,  10  How.  (N.  Y.)  Pr.  348;  442;  Schafer  v.  Reilly,  50  N.  Y.  61; 

Graves  v.  Blanchard,  4  How.    (N.  McRobcrts  v.  Pooley,  12  N.  Y.  Civ. 

Y.)  Pr.  303,  1  VanSant.  Eq.  Pr.  21,  Proc.  Rep.  139. 

22,  523.  *^  Mutual  Life  Ins.  Co.  v.  Bowen, 

For  costs  in  surplus  proceedings  47  Barb.  (N.  Y.)  618. 

see /-o.?/,  §  1017.  ^^  Slosson  v.   Duff,   1   Barb.    (N. 

^^  Mutual  Life  Ins.  Co.  v.  Bowen,  Y.)  432. 
47  Barb.  (N.  Y.)  618. 


1274 


MORTGAGE    FORECLOSURES. 


[§  901 


proof  that  an  asserted  lien  is  for  any  cause  without  foun- 
dation, or  that  it  has  been  overstated  in  amount  or  satisfied 
and  discharged,  or  that  the  claimant  has  placed  himself  in  a 
position  where  the  law  will  not  permit  him  to  participate  in 
the  distribution  of  the  surplus.  In  fact,  the  authority  which 
the  referee  is  entitled  to  exercise  in  the  hearing  and  disposition 
of  claims,  is  as  extensive  as  the  claims  themselves,  or  as  the 
legal  and  equitable  objections  that  may  be  made  to  their 
allowance.*^ 

The  court  held  in  the  case  of  Tator  v.  Adams,**  that  al- 
though there  had  previously  been  some  doubt  as  to  the  powers 
of  referees  in  proceedings  to  distribute  surplus  moneys,  the 
decision  of  Bergen  v.  Snedeker  *^  has  settled  the  matter.  It 
was  held  there,  that  a  question  of  fraud  may  be  investigated 
before  the  referee;  and  it  follows,  by  analogy,  than  any  ques- 
tion may  be  examined  tending  to  show  the  equities  of  the 
claimants.*^ 

The  power  of  a  referee,  to  determine  the  validity  of  a  claim 
in  proceedings  to  distribute  surplus  moneys,  is  not  confined 
to  so  much  thereof  only  as  will  exhaust  the  surplus,  but  his 
decision  sustaining  the  claim  and  overruling  defenses  thereto 
will  be  binding  and  conclusive  upon  the  parties  in  all  other 
matters."     Whenever  the  facts  in  a  case  would  warrant  an 


*3  Kingsland  v.  Chefzvood,  39  Hun 
(N.  Y.)  602,  607,  which  holds  that 
this  measure  of  authority  seems  to 
be  within  the  decision  of  Bergen  v. 
Carman,  79  N.  Y.  146  and  Fliess  v. 
Buckley,  90  N.  Y.  286,  which  very 
much  enlarged  the  rule,  as  it  was 
supposed  to  exist  when  the  case  of 
the  Union  Dime  Savings  Institution 
V.  Osley,  4  Hun  (N.  Y.)  657,  was 
decided.  See  Gutwillig  v.  Welder- 
man.  26  App.  Div.  26,  49  N.  Y. 
Supp.  984. 

«20  Hun  (N.  Y.)  131. 

«8  Abb.  (N.  Y.)  N.  C.  50,  57, 
21  Alb.  L.  J.  54. 


^s  Wilcox  V.  Drought,  36  Misc. 
351,  73  N.  Y.  Supp.  587.  See 
Schafer  v.  Reilly,  50  N.  Y.  61 ;  Mu- 
tual Life  Ins.  Co.  v.  Bowen,  47 
Barb.  (N.  Y.)  618. 

*'^  Bergen  v.  Carman,  79  N.  Y. 
146;  Halsted  v.  Hoisted,  55  N.  Y. 
442;  Husted  v.  Dakin,  17  Abb.  (N. 
Y.)  Pr.  137;  King  v.  West,  10  How. 
(N.  Y.)  Pr.  2)2,2 ;  Sleight  v.  Read, 
9  How.  (N.  Y.)  Pr.  278;  Rogers 
V.  Ivers,  23  Hun  (N.  Y.)  424;  Tator 
V.  Adams,  20  Hun  (N.  Y.)  131; 
Union  Dime  Sav.  Inst.  v.  Osley,  4 
Hun  (N.  Y.)  657;  Mutual  Life  Ins. 
Co.  V.  Salem,  5  T.  &  C.    (N.  Y.) 


§    902]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1275 

action  in  equity  to  declare  a  claim  to  be  a  lien  on  a  fund,  a 
referee  in  surplus  money  proceedings  may  hear  and  deter- 
mine an  application  to  establish  such  lien,  and  if  he  is  of  the 
opinion  that  it  should  be  granted,  he  may  report  directly  in 
favor  thereof.** 

§  902.  What  claims  may  be  litigated. — The  only  claims 
that  can  be  considered  in  a  proceeding  before  a  referee  for 
the  distribution  of  surplus  moneys,  are  such  liens  as  would 
subject  the  estate  to  be  sold  without  the  further  intervention 
of  the  court;  claims  which  have  not  been  perfected  into  liens 
cannot  be  considered,  however  equitable  they  may  be.*^  It 
would  seem,  however,  that  the  inchoate  rights  of  mechanics 
and  material-men,  where  liens  are  given  to  them  by  statute, 
are  claims  of  such  a  nature  that,  although  not  established  by 
judgment,  they  are  entitled  to  be  considered  by  the  referee 
and  to  share  in  the  distribution  of  the  surplus  moneys.*" 

On  a  reference  to  ascertain  to  whom  surplus  moneys  arising 
on  a  foreclosure  belong,  the  referee  is  authorized  to  state 
the  account  of  a  tenant  in  common  who  has  been  in  posses- 
sion of  the  premises  and  collected  the  rents,  and  to  charge  his 
share  of  the  surplus  with  the  excess  so  collected  over  the  part 
to  which  he  was  entitled;"  and  it  was  held  in  the  case  of 
Atlantic  Savings  Bank  v.  Hiler,*^  that  where  an  attorney  for 
a  judgment  creditor  claims  a  lien  upon  the  judgment  for  his 
fees  in  procuring  it,  the  referee  may  protect  such  lien  by  order- 

246;  Atlantic  Sav.  Bank  v.  Hetter-  Tatar  v.  Adams,  20  Hun    (N.  Y.) 

ick,  5  T.  &  C.  (N.  Y.)  239;  Bergen  131;   Bowen  v.  Kaughran,  1  N.  Y. 

V.  Snedeker,  21  Alb.  L.  J.  54.  8  Abb.  State  Rep.  121. 

(N.   Y.)    N.    C.   50;   McRoberts  v.  ^^ Husted  v.  Dakin,  17  Abb.   (N. 

Pooley,   12   N.   Y.   Civ.   Proc.    Rep.  Y.)  ^r.  U7 ;  Mutual  Life  Ins.  Co.  v. 

139.  Bowen.  47  Barb.  (N.  Y.)  618;  King 

*^Crombie  v.  Rosentock,  19  Abb.  v.  West,  10  How.  (N.  Y.)  Pr.  2ZZ. 

(N.  Y.)    N.  C.  312.     See  Fliess  v.  ^^ Livingston  v.   Mildrum,   19   N. 

Buckley,  90  N.  Y.  286;   Bergen  v.  Y.  440. 

Carman,  79  N.  Y.   146;  Hoisted  v.  ^'^  Kingsland     v.     Chetwood,     39 

Halsted.  55   N.  Y.  442;   Kingsland  Hun    (N.  Y.)   602. 

V.  Chetwood,  39  Hun  (N.  Y.)  602;  623  Hun  (N.  Y.)  209. 


1276  MORTGAGE    FORECLOSURES.  [§    902 

ing  a  portion  of  the  amount  due  on  the  judgment  to  be  paid 
to  such  attorney. 

So  the  referee  may  determine  whether  or  not  a  clause  re- 
serving a  life  estate  to  the  mortgagor,  appearing  in  a  mort- 
gage produced  by  a  claimant,  was  inserted  by  mistake;  and 
if  he  finds  that  it  was  so  inserted,  he  may  give  the  mortgage 
priority  as  against  subsequent  judgment  creditors  who  ask 
to  have  the  value  of  such  life  estate  first  set  apart  from  the 
surplus  and  applied  to  the  payment  of  their  debts. ^' 

Where  it  appears  that  the  intention  in  executing  certain 
written  instruments  was  to  assign  the  rights  of  the  parties 
in  the  surplus  moneys,  though  express  words  of  assignment 
were  not  used,  such  instruments  will  be  held  to  be  equitable 
assignments,  and  the  referee  may  report  directly  in  favor  of 
the  equitable  assignee.^* 

A  judgment  lien  upon  surplus  moneys  cannot  be  attacked 
on  such  a  reference  by  a  junior  claimant,  because  of  a  mere 
irregularity  not  affecting  the  jurisdiction  of  the  court  in  which 
it  was  rendered. ^^  Subsequent  incumbrancers  of  mortgaged 
premises  have  no  claim  upon  and  are  not  entitled  to  share  in 
the  surplus  moneys  arising  upon  a  statutory  foreclosure  of 
which  they  had  no  notice,  because  their  liens  are  not  affected 
by  the  proceedings  and  are  not  transferred  from  the  land  to 
the  surplus.^® 

In  a  proceeding  for  the  distribution  of  surplus  moneys,  aris- 
ing from  the  sale  of  mortgaged  premises  under  a  decree  for 
the  foreclosure  of  a  first  mortgage,  where  the  holders  of  a 
fourth  mortgage  set  up  before  the  referee  usury  in  a  third 
mortgage,  it  was  held  that  the  third  mortgage,  being  affected 
or  tainted  with  usury,  was  void  as  to  the  holders  of  the  fourth 
mortgage,  and  was  no  lien,  either  at  law  or  in  equity,  on  the 
surplus  moneys." 

^^  Tatar  v.  Adams,  20  Hun    (N.  ^^  Root  v.   Wheeler,  12  Abb.  "(N. 

Y.)   131.  Y.)    Pr.   294;    Winslow  v.   McCall, 

^^Bowen  v.   Kaughran,   1    N.   Y.  32  Barb.  (N.  Y.)  241. 

State  Rep.  121.  ^^  Mutual  Life  I  us.  Co.  of  N.  Y. 

55  IV kite  V.  Bogart.  73  N.  Y.  256.  v.  Bowen,  47  Barb.  (N.  Y.)  618. 


§    904]  PROCEEDINGS    ON    SURPLUS     MONEYS.  1277 

The  supreme  court  of  New  York,  in  the  case  of  Wolfers  v. 
Duffield,^^  say  that  a  stay  of  proceedings  for  the  distribution 
of  surplus  money  on  mortgage  foreclosure  will  not  be  ordered 
until  the  trial  of  an  action  brought  sixteen  years  before  to  set 
aside  a  deed  of  the  premises  as  fraudulent,  since  in  the  surplus 
proceedings  all  questions  as  to  the  fraudulent  character  of  the 
deed  can  be  tested;  and  if  it  is  an  action  to  set  aside  the  deed 
as  fraudulent,  no  trial  by  jury  can  be  had  as  of  right;  and 
that  if  it  is  to  recover  damages  for  fraud  and  deceit,  recovery 
in  the  action  will  not  establish  a  lien  upon  the  surplus  moneys. 

§  903.  Extent  of  referee's  inquiry. — It  has  been  said 
that  where  an  order  of  reference  directs  the  referee  to  inquire 
and  report,  not  only  as  to  the  amount  due  to  the  party  ob- 
taining such  order,  but  also  as  to  the  liens  of  any  other  persons 
upon  the  surplus  moneys,  the  referee  therefor  should  ascer- 
tain the  whole  amount  of  such  surplus  by  the  certificate  of 
the  treasurer  of  the  county  or  of  the  city  chamberlain,  as  the 
case  may  be,  and  if  the  lien  of  the  party  obtaining  the  refer- 
ence and  entitled  to  priority  is  not  large  enough  to  exhaust  the 
whole  surplus,  it  is  then  the  duty  of  the  referee  to  go  further 
and  to  ascertain  who  is  entitled  to  the  residue  of  such  surplus ; 
so  that,  upon  the  coming  in  of  a  report,  an  order  may  be  made 
which  will  dispose  of  the  whole  surplus  fund.  Prima  facie 
the  owner  of  the  equity  of  redemption  is  entitled  to  the  sur- 
plus, and  if  no  one  attends  before  the  referee  and  produces 
evidence  of  a  better  right,  and  there  is  no  evidence  before 
him  that  the  person  entitled  thereto  prima  facie  has  parted 
with  his  right,  it  is  the  duty  of  the  referee  to  report  tliat  the 
residue  of  such  surplus  belongs  to  the  owner  of  the  equity  of 
redemption. ^^ 

§  904.  Right  of  claimant  not  filing  notice  to  appear. — 
An  incumbrancer  or  lienor  who  has  neglected  to  file  a  notice 

58  25   N.  Y.   Supp.  374,  55   N.  Y.  ^^  Franklin  v.   VanCott,  11   Paige 

S.  R.  485.  Ch.  (N.  Y.)  129. 


1278  MORTGAGE    FORECLOSURES.  [§    905 

oi  his  claim  upon  the  surplus  moneys,  may  appear  before  the 
referee  pending  the  reference  as  to  such  surplus,  and  file  his 
claim  in  proper  manner;  he  will  then  be  entitled  to  be  heard 
upon  the  reference  as  to  the  validity  of  his  claim,  upon  such 
equitable  terms  as  to  costs  as  the  referee  may  direct.®" 

Where  an  order  of  reference  has  been  entered  upon  the 
application  of  another  claimant,  before  the  petitioner  became 
aware  of  his  rights,  he  will,  nevertheless,  be  authorized  to 
appear  on  the  reference  and  to  present  and  establish  his 
claim  to  the  surplus.®^  But  he  cannot,  pending  such  refer- 
ence, maintain  an  independent  proceeding  by  a  new  petition 
or  motion.®'' 

§  905.  Testimony  to  be  signed  and  filed. — Under  the 
New  York  practice,  the  testimony  upon  a  reference  in  pro- 
ceedings for  the  distribution  of  the  surplus,  must  be  signed 
by  the  witnesses  and  filed  with  the  report  of  the  referee.®^  a 
note  of  the  time  of  the  filing  must  be  entered  by  the  clerk 
in  a  proper  book  under  the  title  of  the  foreclosure.®* 

This  rule  is  imperative,  unless  its  provisions  are  waived  by 
some  act  of  the  parties;  the  mere  omission  of  the  parties  to 
request  that  the  signatures  of  the  witnesses  be  affixed  to  their 
testimony,  will  not  amount  to  a  waiver.®^ 

Where  a  witness  fails  to  sign  his  testimony,  the  remedy 
for  the  irregularity  is  by  motion  for  the  purpose  of  securing 

^Hulbert  v.  McKay,  8  Paige  Ch.  his  fees  are  paid,  yet  if  he  deHvers 

(N.  Y.)  651.  them  to  the  referee  to  be  examined 

61  See  DeRuyter  v.  St.  Peter's  by  him  or  used  as  the  basis  of  his 
Church,  2  Barb.  Ch.  (N.  Y.)  555;  report,  but  not  to  be  filed  until  his 
Hulbcrt  V.  McKay,  8  Paige  Ch.  (N.  fees  are  paid,  the  referee  must, 
Y.)  651.  nevertheless,  file  them  with  his  re- 

62  DeRuyter  v.  5"/.  Peter's  Church,  port,  even  though  the  stenographer's 
2  Barb.  Ch.  (N.  Y.)  555.  fees  remain  unpaid.     Pope  v.  Per- 

^^Pope  V.   Peraiilt,  22   Hun    (N.  ault.  22  Hun  (N.  Y.)  468. 

Y.)    468.     And   it   is   said  that   al-  ^^  N.  Y.  Supreme  Court  Rule  30. 

though  a  court  stenographer  is  not  ^5  Bowne  v.  Leveridge,  2  Month, 

obliged  to  part  with  his  notes  until  Law   Bull.  88. 


§    907]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1279 

its  correction  and  not  by  filing  exceptions  to  the  report  of  the 
referee.^^ 

§  906.  Referee's  report — Filing  same. — Upon  a  refer- 
ence to  ascertain  who  are  entitled  to  the  surplus  moneys 
brought  into  court  under  a  foreclosure,  the  referee  must  ascer- 
tain and  report  the  facts  as  directed  in  the  order  of  his  ap- 
pointment; such  report  should  show  on  its  face  that  every 
party  entitled  to  notice  to  attend  upon  the  reference,  was 
duly  summoned  to  appear ;  it  should  also  state  what  parties  ap- 
peared on  the  reference.^' 

After  the  report  of  the  reference  has  been  prepared  it 
should  be  filed,  and  an  order  for  the  confirmation  thereof 
should  be  entered  with  the  order  for  the  distribution  of  the 
surplus.  The  latter  will  be  granted  as  a  matter  of  course,  un- 
less exceptions  to  the  report  have  been  filed.®* 

§  907.  Exceptions  to  the  referee's  report. — Any  person 
interested  in  the  distribution  of  the  surplus  moneys  may  file 
exceptions  to  the  report  of  the  referee,  if  he  considers  him- 
self aggrieved  thereby;  if  two  or  more  persons  wish  to  file 
the  same  objections  to  the  report,  they  may  do  so  either  by 
joining  in  the  same  exceptions  or  by  stating  their  exceptions 
separately.  Parties  who  have  appeared  on  the  reference, 
are  entitled  to  notice  of  the  filing  of  the  referee's  report.®^  At 
any  time  after  tlie  report  is  filed  either  party  may  bring  on 
the  action  or  proceeding  at  Special  Term  on  notice  to  the  par- 
ties interested  therein.'" 

Where  no  exceptions  are  taken  to  the  report  it  must  be  con- 
firmed by  the  entry  of  the  usual  order;  proof  by  certificate 

^^  National    State    Bank    v.    Hib-  163;  Biirchard  v.  Phillips,  3  N.  Y. 

bard,  45  How.  (N.  Y.)  Pr.  281.  287.  Leg.  Obs.  35. 

See  Greene  v.  Bishop,  1  Cliff.  C.  C.  ^8  gee    Franklin    v.    VanCott,    11 

186.  Paige  Ch.    (N.  Y.)    129;  Ex  parte 

^"^  Franklin  v.  VanCott.  11   Paige  Allen,  2  N.  J.  Eq.    (1  H.  W.  Gr.) 

Ch.    (N.  Y.)    129;  Hulbert  v.   Mc-  388. 

Kay,  8  Paige  Ch.  (N.  Y.)  651.    See  ^9  x    y.  Supreme  Court  Rule  64 

Cram  v.  Mitchell,  3  N.  Y.  Leg.  Obs  'O  X.  Y.  Supreme  Court  Rule  30 


1280  MORTGAGE    FORECLOSURES.  [§    908 

or  affidavit  that  such  report  has  become  absolute  must  be  pro- 
duced, before  an  order  to  pay  the  amounts  reported  will  be 
granted.'^ 

§  908.  Hearing  exceptions  to  report. — Where  excep- 
tions have  been  filed  to  the  referee's  report  and  a  motion  for 
the  final  hearing  is  brought  on,  the  party  excepting  must 
furnish  the  court  with  copies  of  the  report  and  of  the  ex- 
ceptions and  proofs  of  claims.'^  The  rules  of  the  New  York 
supreme  court  ''^  require  that  the  testimony  taken  by  the  referee 
shall  be  signed  and  filed.'*  But  in  those  states  where  the  testi- 
mony is  not  required  to  be  annexed  to  and  returned  with  the 
report,  if  the  party  excepting  thereto  desires  to  review  some 
question  upon  the  evidence  taken  before  the  referee,  or  if  any 
party  desires  to  use  such  evidence  on  the  argument  of  the  ex- 
ceptions, a  duly  certified  copy  thereof  must  be  obtained  from 
the  referee.''^^ 

At  such  hearing  the  court  will  not  only  look  to  the  proofs 
of  claims,  but  it  will  also  receive  any  other  evidence  in  its  dis- 
cretion, such  as  stipulations,  and  the  admissions  of  the  par- 
ties presented  on  the  hearing.'^  But  affidavits  taken  subse- 
quently to  the  report  cannot  be  read  at  such  hearing,  and  no 
evidence  can  be  produced  which  was  not  introduced  before  the 
referee.''^ 

If  the  court  allows  the  exceptions  or  any  of  them,  it  may 
modify  or  set  aside  the  report,  or  send  it  back  to  the  referee 
with  proper  directions  to  proceed  thereon  de  novo,  or  to  cor- 
rect specified  defects  therein,  as  by  ascertaining  some  fact 
which  may  be  necessary  to  enable  the  court  to  reach  a  proper 

''^  Franklin  v.   VanCott,  11   Paige  ''^  Gregory  v.  Campbell.  16  How. 

Ch.    (N.  Y.)    129.  (N.  Y.)  Pr.  417. 

72  1  VanSant  Eq.  Pr.  571.  "^Hedges    v.    Cardonncl.   2   Atk. 

'3  N.  Y.  Supreme  Court  Rule  30.       408.      See    Jenkins   v.    Eldredge,   .3 

74  See  ante,  §  905.  Story  C.  C.  299,  306. 

75  In  re  Merritt,  1  VanSant.  Eq. 
Pr.  566n,  1  Hoff.  Ch.  Pr.  545,  1 
Barb.  Ch.  Pr.  549. 


§    910]  PROCEEDINGS    ON    SURPLUS    MONEYS.  1281 

decision.  In  any  event,  a  new  order  of  reference  should  be 
made,  reserving  the  distribution  of  the  surplus  and  the  costs 
of  the  proceding  until  the  coming  in  of  the  new  report. 

§  909.  Confirmation  of  referee's  report. — The  court 
has  power  in  its  discretion  to  confirm,  or  set  aside,  or  refer 
back  the  report  of  a  referee  appointed  to  ascertain  the  rights 
of  claimants  to  surplus  moneys  on  foreclosure,  and  is  not  re- 
stricted in  the  exercise  of  this  power  by  the  rules  governing 
a  motion  for  a  new  trial.'*  It  has  been  held  that  where  an  or- 
der is  entered  directing  that  a  master's  report  of  a  foreclosure 
sale  be  confirmed  unless  objections  are  filed,  on  the  filing  of 
such  objections  for  the  sole  purpose  of  deciding  who  is  en- 
titled to  the  surplus,  an  order  disposing  of  such  surplus  is 
equivalent  to  a  confirmation  of  the  sale,  as  against  the  party 
objecting.'® 

It  is  said  in  the  case  of  Cutting  v.  Tavars,  Orlando  and 
Atlantic  Railroad  Company,®"  that  a  decree  of  distribution  of 
the  proceeds  of  a  railroad  mortgage  is  erroneous  in  rejecting 
a  credit  to  the  purchaser  which  was  allowed  by  the  decree  of 
confirmation  settling  his  rights  and  obligations. 

§  910.  Opening   and  setting   aside   referee's   report. — 

After  a  sale  under  a  foreclosure,  and  before  the  distribution 
of  the  surplus  moneys,  a  party  who  has  a  judgment  Hen  on 
the  premises  at  the  time  of  the  sale  may  have  the  proceedings 
opened,  so  that  he  may  be  heard  upon  his  right  to  share  in 
the  surplus ;  ®^  because,  while  the  moneys  remain  in  the  court 
undistributed,  it  may  at  any  time  vacate  an  order  confirming 
the  report  and  refer  the  matter  back  to  the  referee  for  a  iuv- 

''^  Mutual   Life   Ins.    Co.   v.    An-  Voast  v.  Gushing,  32  App.  Div.  116, 

thony,  23   N.  Y.   Week.   Dig.  427 ;  52  N.  Y.  Supp.  934. 

Dold  V.  Haggerty,  24  Hun  (N.  Y.)  "^^  Lambert  v.  Livingston,  131  111. 

383,  11  Rep.  746;  Miitual  Life  Ins.  161,  23  N.  E.  352. 

Co.  V.  Salem,  3  Hun  (N.  Y.)  117,  5  sogi  ped.  150. 

T.  &  C.  (N.  Y.)  246.    See  also  Van  ^'^  Citizens'  Savings  Bank  v.   Van 
Mortg.  Vol.  II.— 81. 


1282  MORTGAGE    FORECLOSURES.  [§    911 

ther  report.'^  Thus,  it  has  been  held  that  where  a  general 
creditor,  who  had  no  notice  of  the  proceedings  to  distribute 
the  surplus  until  after  the  entry  of  the  order  confirming  the 
report  of  the  referee,  applies  to  be  made  a  party  to  the  pro- 
ceeding, his  application  should  be  granted.*^ 

But  where  the  report  of  the  referee  directs  a  distribution 
of  the  surplus  as  it  should  be  legally  and  equitably  made,  his 
report  will  not  be  set  aside  or  disregarded,  or  the  order  con- 
firming it  vacated,  simply  on  account  of  an  irregularity  in  re- 
ceiving or  considering  claims  which  were  not  filed  with  the 
county  clerk." 

§911.  Appeal  from  order  for  distribution. — Where   a 

party  finds  himself  aggrieved  by  the  decision  of  the  court 
on  a  motion  for  the  confirmation  of  a  referee's  report,  his 
remedy  is  by  appeal.'^  The  court  of  appeals  has  jurisdiction 
to  decide  an  appeal  from  an  order  for  the  distribution  of  sur- 
plus moneys,  because  such  an  order,  even  if  entitled  in  the 
action,  is  not  made  therein,  but  in  a  special  proceeding  com- 
menced after  the  action  is  ended  by  a  final  judgment  which 
effects  every  object  that  the  action  was  brought  to  accom- 
plish.»« 

Tassel,  N.  Y.  Daily  Reg.  May  28,  5  «  McRoberts  v.  Pooley,  12  N.  Y. 

Month.  Law  Bull.  50.  Civ.  Proc.  Rep.  139. 

82  Mutual  Life  Ins.  Co.  v.  Salem,  ^^  Buslnuick  Savings  Bank  v. 
3  Hun  (N.  Y.)  117,  5  T.  &  C.  (N.  Traum,  158  N.  Y.  668,  52  N.  E. 
Y.)  246.  1123,    affirming   26   App.    Div.   532, 

83  German  Savings  Bank  v.  50  N.  Y.  Supp.  542 ;  Velleman  v. 
Sharer,  25  Hun  (N.  Y.)  409.  Rohrig,   193   N.  Y.  439,  86  N.   E. 

**  Kingsland  v.  Chetwood,  39  Hun      476. 
(N.  Y.)  602. 


CHAPTER  XXXIV. 

STATUTORY  FORECLOSURE  OR  FORECLOSURE  BY 
ADVERTISEMENT. 

POWER  OF  SALE — NOTICE  OF  SALE — PUBLISHING,  POSTING,  SERVING — CONTENTS 
OF  NOTICE — CONDUCT  OF  SALE — 6ETTING  ASIDE — ENJOINING — EFFECT  OF 
SALE — AFFIDAVITS  OF  PROCEEDINGS — RECORDING  SAME — OPERATE  AS  DEED 
TO  PASS  TITLE. 

§  912.  General  nature. 

§  913.  Stipulation  for  foreclosure  by  advertisement. 

§  914.  What  mortgages  may  be  foreclosed  by  advertisement. 

§  915.  Foreclosure    by    advertisement,    where    part    of    debt    otherwise 

collected. 
§  916.  Who  may  foreclose  by  advertisement. 
§  917.  Notice  of  sale — Publication. 
§  918.  What  is  a  valid  publication  of  the  notice. 
§  919.  Posting   notice   of   sale. 

§  920.  Delivering  notice  of  sale  to  county  clerk — His  duty. 
§  921.  Personal  service  of  notice — Who  entitled  to. 
§  922.  Service  on  personal  representatives. 
§  923.  Service  of  notice  on  subsequent  grantees  and  lienors. 
§  924.  Service  of  notice  on  wife  or  widow  of  mortgagor  or  his  grantee, 
§  925.  Service  of  notice  upon  subsequent  lienors. 
§  926.  Service  of  notice  of  sale — How  made. 
§  927.  Service  of   notice  by   mail. 
§  928.  Contents  of  notice  of  sale. 
§  929.  Description  of  mortgaged  premises  in  notice. 
§  930.  Description  of  mortgage  in  notice. 
§  931.  Notice  should  state  place  of  sale. 
§  932.  Stating  amount  due  in  notice. 
§  933.  Stating  amount  where  only  part  of  debt  is  due. 
§  934.  Statement   in   notice   of  prior   incumbrances. 
§  935.  Date   of    sale  and   signature   to   notice. 
§  936.  Objections   to  notice   of   sale. 
§  937.  Postponement   of   sale. 
§  938.  Time  and  place   of   sale. 
§  939.  By   whom   sale  to  be  conducted. 
§  940.  Sale   in  parcels. 
§  941.  Terms  of  sale. 

1283 


1284  MORTGAGE    FORECLOSURES.  [§    912 

§  942.  Mortgagee   may  become  purchaser. 

§  943.  Setting  sale  aside. 

§  944.  Grounds  for  setting  sale  aside. 

§  945.  Enjoining  sale. 

§  946.  Damages  for  wrongful  injunction. 

§  947.  Lands  situated  in  another  state. 

§  948.  Effect  of  sale  by  advertisement. 

§  949.  Sale    firm    and    binding    on    all    parties. 

§  950.  Effect  of  sale  on  omitted  parties— Rights  of  tenants. 

§  951.  Purchaser's  title — What  passes  by  sale. 

§  952.  Defective   foreclosure. 

§  953.  Affidavits  of  the  proceedings. 

§  954.  Sufficiency  of  affidavits. 

§  955.  Contents  of  affidavits. 

§  956.  Amending  affidavits. 

§  957.  Recording  affidavits. 

§  958.  Necessity  of  recording  affidavits. 

§  959.  Contradicting  affidavits. 

§  960.  Effect  of  affidavits. 

§  961.  Necessity  for  deed. 

§  962.  Obtaining  possession  by  purchaser — Summary  proceedings. 

§  912.  General  nature. — Statutory  foreclosure,  or  fore- 
closure by  advertisement,  is  exclusively  a  creation  of  legisla- 
tive enactment  in  the  various  states  where  it  is  allowed ;  " 
every  requirement  of  the  statute  must  be  strictly  complied 
with,  as  failure  to  comply  with  any  of  its  material  directions 
will  render  the  foreclosure  irregular  and  void.*' 

^"^  As   to   the   provisions   in   New  162,  164 ;  Doughty  v.  Hope,  3  Den. 

York,   see   N.   Y.   Code   Civ.   Proc.  (N.  Y.)  594,  1  N.  Y.  79;  Striker  v. 

§23S7,etseq.  Kelly,   2   Den.    (N.    Y.)    323,    330; 

88  Co/e  V.   Moffitt.  20   Barb.    (N.  Sherwood  v.  Reade,  6  Hill  (N.  Y.) 

Y.)    18;  St.  John  v.  Bumpstead,  17  431;  Sharp  v.  Johnson,  4  Hill   (N. 

Barb.     (N.    Y.)     100;    Stanton    v.  Y.)  92,  99,  40  Am.  Dec.  259;  5/;a/-/> 

Kline,  16  Barb.   (N.  Y.)  9;  Cohoes  v.   Spear,  4   Hill    (N.   Y.)    76,   84; 

V.    Goss,    13    Barb.    (N.    Y.)     137;  Bloom  v.  Burdick,  1  Hill   (N.  Y.) 

King  V.  Duntz,   11    Barb.    (N.   Y.)  141,  Z7  Am.  Dec.  299;  Thatcher  v. 

191;   VanSlyke  v.  Sheldon,  9  Barb.  Powell,   19  U.   S.    (6  Wheat.)    119, 

(N.  Y.)  278;  Low  V.  PMri3>,  2  Lans.  5    L.    ed.    221;    Lockett   v.    Hill,    1 

(N.    Y.)    422.      See    Lawrence    v.  Wood  C.  C.  552. 

Farmers'  Loan  &  Trust  Co.  13  N.  For  a  history  of  the  statute  for 

Y.  200,  64  Am.  Dec.  512;  Powell  v.  foreclosure     by     advertisement     in 

Ttittle,  3  N.  Y.  396,  401 ;  People  v.  New  York,  see  Mowry  v.  Sanborn, 

Board  of  Police,  6  Abb.  (N.  Y.)  Pr.  68  N.  Y.  153,  72  N.  Y.  534,  65  N.  Y. 


§    912]  STATUTORY    FORECLOSURE.  1285 

A  power  contained  in  the  mortgage  seeking  to  confer  the 
right  of  foreclosure  is  void.*^  Where  the  statute  confers  the 
right  to  foreclosure  by  advertisement,  no  notice  of  intention  to 
foreclose  a  mortgage  containing  a  power  of  sale  is  necessary, 
unless  there  was  an  express  stipulation  therefor.^"  And  in 
those  cases  where  a  mortgage  expressly  provides  that  the 
mortgagee  may  sell  at  private  sale,  and  does  not  provide  for 
any  notice  to  be  given,  a  sale  without  notice  after  the  debt  is 
due  is  valid.^^  Where  a  sale  under  a  power  in  a  mortgage 
is  regular,  it  cuts  off  the  equity  of  redemption  and  reduces  it 
to  a  mere  statutory  right,  although  no  conveyance  is  executed 
to  the  purchaser.'^  And  where,  at  such  a  sale,  there  is  no  writ- 
ing signed  to  take  the  contract  out  of  the  Statute  of  Frauds, 
only  the  mortgagee  and  the  purchaser  can  take  advantage  of 
the  omission.^' 

The  supreme  court  of  Rhode  Island,  in  the  case  of  Bull's 
Petition,^^  say  that  a  power  reserved  to  a  grantor  in  a  mort- 
gage, to  release  any  restrictions  in  his  deeds  against  erecting 
any  edifice  for  obstruction  of  light  near  the  buildings,  the 
mortgage  also  containing  a  power  of  sale  authorizing  the  mort- 
gagee to  sell  the  premises  absolutely  and  in  fee  simple,  is  ex- 
tinguished by  a  sale  for  breach  of  condition. 

In  the  case  of  Riley  v.  McCord,^*  the  court  say:  "It  has 
long  been  the  opinion  that,  notwithstanding  the  mode  pre- 
scribed by  the  statute,  a  party  may  forego  the  statutory  rem- 
edy, and  pursue  his  rights  in  a  court  of  chancery  by  a  bill  in 
equity."  Consequently  it  has  been  said  that  "when  a  pro- 
ceeding to  foreclose  a  mortgage  has  been  had,  in  order  to  de- 

581,  62  Barb.   (N.  Y.)  223.  11  Hun  ^^  Rose  v.  Page,  82  Mich.  105,  46 

(N.  Y.)  545,  7  Hun  (N.  Y.)  380.  N.  W.  227. 

89  Thus,  in  Nebraska,'  a  sale  undei  ^2  fsj ewbt^rn  v.  Bass,  82  Ala.  622, 
a  power  of  sale  in  a  mortgage  is  2  So.  520. 

void ;    the    mortgagee's    remedy    is  ^^  Newburn  v.  Bass,  82  Ala.  622, 

limited    to    proceedings    in    court.  2  So.  520. 

Wheeler  v.  Sexton,  34  Fed.  154.  9*  15  R.  I.  534.  10  Atl.  484. 

90  Carver    v.    Brady,    104    N.    C  »6  24  Mo.  268. 
219,  10  S.  E.  565. 


1286 


MORTGAGE    FORECLOSURES. 


[§  913 


termine  whether  it  was  under  the  statute  or  accorcHng  to  the 
course  in  chancery,  we  must  have  recourse  to  the  substance  of 
the  thing,  and  not  to  the  rhetorical  flourishes  with  which  it 
may  be  accompanied."  ^^ 

The  terms  of  a  statute  requiring,  in  case  of  a  bond  and  mort- 
gage given  for  the  same  debt,  that  the  mortgage  shall  be  first 
foreclosed,^'  are  not  waived  by  giving  with  the  bond  a  warrant 
to  confess  judgment;  and  a  judgment  entered  upon  such  bond 
before  the  foreclosure  of  the  accompanying  mortgage  is  irregu- 
lar.^^ And  it  is  held  that  a  statute  providing  that  a  mortgage 
shall  be  foreclosed  before  the  bond,  applies  whether  the  mort- 
gagee be  complainant  or  defendant.^' 

§  913.  Stipulation  for  foreclosure  by  advertisement. — 

While  it  is  true  that  the  parties  to  a  mortgage  may  contract 
for  a  private  sale  of  the  premises  without  notice,^  in  the  ab- 
sence of  a  positive  statutory  prohibition,  yet  such  contracts 
are  contrary  to  the  general  policy  of  statutes  providing  for 
foreclosure  by  advertisement;  to  render  such  sales  valid  and 


^^  Riley  v.  McCord,  24  Mo.  268. 

97  As  N.  J.  Supp.  Rev.  Stat.  490, 
P.  L.   1881,  p.   184. 

98  Hellyer  v.  Baldwin,  53  N.  J.  L. 
(24  Vr.)  141,  20  Atl.  1080, 

^^  H inkle  v.  Champion,  42  N.  J. 
Eq.  (15  Stew.)  610,  8  Atl.  656. 

^Elliott  V.  Wood,  45  N.  Y.  71, 
78.  See  Lawrence  v.  Farmers'  Loan 
&  Trust  Co.  13  N.  Y.  200;  Mon- 
tague V.  Dawes,  94  Mass.  (12 
Allen),  397.  The  validity  of  such 
a  power  was  at  first  doubted,  al- 
though it  is  believed  that  there  is 
no  case  in  which  sales,  thereunder, 
were  held  void.  This  doubt  first 
appeared  in  the  case  of  Croft  v. 
Powell,  Comyns.  603,  and  was 
subsequently     fortified    by   the   re- 


marks of  Lord  Eldon  in  the  case  of 
Roberts  v.  Boson,  1  Pow.  Mort.  9a, 
note.  There  seems,  however,  to  be 
no  reason  why  the  absolute  owner 
of  the  fee  should  not  have  the 
power  to  authorize  any  one  to  sell 
it  for  his  benefit,  except  that  when 
such  a  power  is  given  to  the  mort- 
gagee for  his  own  benefit  he  may 
abuse  the  trust.  See  Demarest  v. 
Wynkoop,  3  Johns.  Ch.  (N.  Y.)  129, 
8  Am.  Dec.  467;  Waters  v.  Randall. 
47  Mass.  (6  Mete.)  479;  Kinsley  v. 
Ames,  43  Mass.  (2  Mete.)  29; 
Eaton  V.  Whiting,  20  Mass.  (3 
Pick.)  484;  Clark  v.  Condit,  18  N. 
J.  Eq.  (3  C.  E.  Gr.)  358;  Carder  v. 
Morgan,  18  Ves.  344. 


§    914]  STATUTORY    FORECLOSURE.  1287 

to  bar  the  equity  of  redemption,  they  must  be  made  strictly 
in  accordance  with  the  requirements  of  such  statutes.^ 

The  statute  of  a  state  regulating  the  foreclosure  of  mort- 
gages by  advertisement,  does  not  apply  to  mortgages  on  real 
estate  without  the  state;'  consequently,  the  courts  of  New 
York  have  refused  to  enjoin  a  resident  mortgagee  of  lands 
situated  without  the  state,  from  selling  them  by  public  sale 
within  the  state  according  to  the  terms  of  the  mortgage,  merely 
on  the  allegation  that  such  power  is  void,  where  it  does  not 
appear  that  the  power  is  void  by  the  law  of  the  state,  or  ter- 
ritory, where  the  lands  are  situated.* 

While  it  is  necessary  under  the  statute  to  have  a  mortgage 
duly  recorded  in  the  county  where  the  premises  as  situated, 
before  it  can  be  foreclosed  by  advertisement,^  such  provision 
is  wholly  for  the  benefit  of  the  purchaser,  and  an  omission 
to  have  it  so  recorded  will  not  affect  the  validity  of  the  sale.® 

§  914.  What  mortgages  may  be  foreclosed  by  adver- 
tisement.— Every  mortgage  containing  a  power  of  sale 
may  be  foreclosed  by  advertisement,'  providing  it  was  executed 
by   parties   of   competent   age;   but,    if   it   was   executed   by 

^Lawrence  v.  Fanners'   Loan   &  7  Johns.   Ch.    (N.  Y.)   25,  and  see 

Trust  Co.  U  N.  Y.  200,  211.  Shelby  v.  Bowden,  16  S.  D.  531,  94 

^Elliott    V.    Wood,  45  N.  Y.  71.  N.  W.  416;    Bergen   v.    Bennett,  1 

See  post,  §  947.  Cai.   Cas.    (N.  Y.)    1,  2  Am.   Dec. 

^Central    Gold     Mining     Co.    v.  281;    Compare    Wells  v.    Wells,   47 

Piatt,    3    Daly    (N.  Y.)   263.     See  Barb.   (N.  Y.)  416. 

Carpenter  v.    Black   Hawk    Co.   65  ''Grant   County   v.    Colonial   and 

N.  Y.  43;  Elliott  v.  Wood,  45  N.  Y.  United  States  Mortgage   Company. 

71,  aflf'g  53  Barb.  (N.  Y.)  285.  3   S.   D.  390,   53  N.   W.  746.     See 

*  Wells   V.    Wells,   47    Barb.    (N.  Kammann  v.  Barton,  26  S.  D.  371, 

Y.)  416.     See  Langmaack  v.  Keith.  128  N.  VV.  329. 

19  S.  D.  351,  103  N.  W.  210;  Kern-  In  Wisconsin,  the  statutory  form 

mann  v.  Barton,  26  S.  D.  371,   128  of     mortgage     which    contains    no 

N.  W.  329.  power  of  sale,  cannot  be  foreclosed 

^Jackson  V.  Colden,  4  Cow.    (N.  by      advertisement.       Dawson      v. 

Y.)  266;  Wilson  v.  Troup,  2  Cow.  Baiich,  149  Wis.  144,  135  N.  W.  535. 
(N.  Y.)   195,  14  Am.  Dec.  458,  aff'g 


1288  MORTGAGE    FORECLOSURES.  [§    914 

persons  under  the  statutory  age,  it  cannot  be  so  foreclosed.* 
Where  a  mortgage,  containing  a  power  of  sale,  covenants  for 
insurance,  a  failure  to  comply  with  the  covenant  will  consti- 
tute such  a  default  as  to  entitle  the  mortgagee  to  sell  under  the 
power  contained  in  the  mortgage,  even  though  it  may  be  im- 
possible to  comply  with  the  covenant.^ 

To  this  general  rule,  however,  there  are  some  exceptions. 
Thus,  it  has  been  held  that  a  mortgage  given  to  secure  un- 
liquidated damages  cannot  be  foreclosed  by  advertisement  un- 
der the  statute,^"  and  that  the  mortgage  upon  the  property  of  an 
habitual  drunkard  cannot  be  so  foreclosed,  because  proceedings 
for  foreclosure  cannot  be  instituted  against  the  property  of  an 
habitual  drunkard  unless  leave  of  the  supreme  court  is  first 
obtained."  In  VanBergen  v.  Demarest,^^  it  was  held  that  on 
the  application  of  an  infant  heir  to  the  mortgagor,  chancery 
will  intervene  and  order  the  sale  to  be  made  under  the  direc- 
tion of  a  master  or  referee,  associated  with  the  mortgagee. 

And  the  supreme  court  of  Michigan,  in  the  case  of  Olcott 
V.  Crittenden, ^^  say  that  statutory  foreclosure  is  not  adapted  to 
cases  where  there  are  conflicting  equities  which  can  only  be 
protected  in  a  court  of  chancery.  And  it  has  been  said  by  the 
supreme  court  of  Minnesota,  that  after  the  execution,  deliv- 
ery and  recovery  of  a  quitclaim  deed  the  legal  effect  of  which  is 
to  release  and  discharge  a  mortgage  of  record,  the  mortgagee 
cannot  foreclose  the  mortgage  by  advertisement,  and  that 
consequently  such  foreclosure  proceedings  are  void  and  of 
no  effect." 

It  has  been  held  that  one  of  several  mortgages  made  by 
an  incompetent  person,  which  in  a  suit  for  their  cancellation 
has  been  allowed  by  the  court  to  stand  as  security  for  benefits 
actually  received  by  the  mortgagor,  and  which  by  the  decree 

^Burnet   v.    Denniston,   5   Johns.  ^^ /«  re  Parker,  6  Alb.  L.  J.  324. 

Ch.  (N.  Y.)  35.  124  Johns.  Ch.   (N.  Y.)  37. 

9  Walker  v.  Cockey,  38  Md.  75.  13  68  Mich.  230,  36  N.  W.  41. 

1"  Ferguson   v.   Kimball,  3    Barb.  ^^  Benson    v.    Markoe,   41    Minn. 

Ch.   (N.  Y.)  619.     See  Ferguson  v.  112,  42  N.  W.  787. 
Ferguson,  2  N.  Y.  360. 


§  915]  STATUTORY  FORECLOSURE.  1289 

has  been  changed  in  its  terms  as  to  rate  of  interest  and  time 
of  payment,  and  foreclosure  thereof  enjoined  until  the  other 
mortgages  are  canceled  and  the  notes  surrendered, — cannot 
be  foreclosed  by  advertisement,  but  foreclosure  must  be  by 
proceeding  in  chancery,  in  which  compliance  with  the  terms 
of  the  decree  must  be  alleged  and  proved.^*  And  it  is  thought 
that  foreclosures  on  reversions  and  equities  may  come  within 
a  rule  of  necessity  and  practicability,  upholding  the  only 
possession  of  which  the  mortgaged  estate  is  reasonably  ca- 
pable." 

§  915.  Foreclosure  by  advertisement,  where  part  of 
debt  otherwise  collected. — Where  a  mortgage  has  been 
foreclosed  by  an  action  for  a  part  of  the  debt,  and  the  decree 
provided  for  a  second  sale  on  a  subsequent  default,  a  fore- 
closure cannot  be  conducted  by  advertisement."  And  if  a 
suit  or  a  proceeding  at  law  has  been  commenced  to  recover 
the  debt  secured  by  a  mortgage,  a  foreclosure  by  advertise- 
ment cannot  be  had,  unless  such  suit  or  proceeding  is  first 
discontinued,  or  an  execution  issued  on  the  judgment  re- 
covered therein  has  been  returned  unsatisfied  in  whole  or  in 
part." 

It  is  thought,  however,  that  the  right  to  foreclose  will  not 
be  extinguished,  where  an  assignee  of  the  mortgage  takes  a 
quitclaim  deed  of  one-half  of  the  mortgaged  premises;  at 
most,  such  a  deed  can  operate  only  to  extinguish  a  portion 
of  the  mortgage  debt,  and  the  assignee  will  be  at  liberty  to 
foreclose   for  the  residue,"  because,  in  the  absence  of  any 


15  Strong  v.  Tomlinson,  88  Mich.  "  Cox  v.    Wheeler,  7   Paige   Ch. 

112,  50  N.  W.  106.  (N.  Y.)    248,  250.     See  Grosvcnor 

^'Bartlett  v.  Sanborn,  64  N.  H.  v.  Day.  Clarke  Ch.  (N.  Y.)   109. 

70,  6  Atl.  486.    See  Painter  v.  Fow-  "  Grosvenor  v.   Day,  Clarke   Ch. 

ley,  71  Mass.  (5  Gray)  545;  Penni-  (N.  Y.)  109. 

man  v.  Hollis,  13  Mass.  429;  Colby  ^^ Klock  v.  Croiikhite,  1   Hill  (N. 

V.  Poor,  15  N.  H.  198.  Y.)  107. 


1290 


MORTGAGE    FORECLOSURES. 


[§  916 


words  of  restriction,  an  assignment  of  a  legal  interest  in  a 
mortgage  passes  the  power  of  sale  with  the  debt  secured.^" 

The  payment  of  a  mortgage  extinguishes  the  power  of  sale 
contained  in  it;  if  a  statutory  foreclosure  is  conducted  there- 
after, a  bona  fide  purchaser  at  the  sale  will  acquire  no  title 
in  the  premises. ^^  A  sale  under  a  power,  after  a  tender  of  the 
mortgage  debt  by  one  entitled  to  redeem,  will  be  irregular  and 
void.^^ 

§  915.  Who  may  foreclose  by  advertisement, — The 
foreclosure  of  a  mortgage  by  advertisement  must  be  made 
by  or  in  the  name  of  the  real  party  in  interest.^^  In  those 
states  where  mortgages  are  regarded  as  real  chat  .'el  interests  in 
the  premises,  the  personal  representatives  of  a  deceased  mort- 
gagee may  prosecute  a  statutory  foreclosure.^*  This  rule  in- 
cludes the  assignee  of  a  mortgage,^^  or  his  executors  or  admin- 
istrators. A  surviving  executor  may  foreclose  by  advertise- 
ment ;  ^®  so  may  a  foreign  executor  or  administrator.^'''  It 
has  been  held  in  Wilson  v.  Troup,^^  that  the  fact  that  a  mort- 
gagee has  attempted  to  convey  portions  of  the  mortgaged 
premises  will  not  affect  his  right  to  foreclose  in  his  own 
name. 

Where  a  mortgage  secures  several  notes  held  by  different 
parties,  only  the  holder  of  the  mortgage  is  entitled  to  fore- 


go Slee  V.  Manhattan  Ins.  Co.  1 
Paige  Ch.  (N.  Y.)  48. 

21  Cameron  v.  Irwin,  5  Hill  (N. 
Y.)  272.  See  Warner  v.  Blakeman, 
36  Barb.  (N.  Y.)  501,  aff'd  4  Keyes 
(N.  Y.)  487. 

22  Burnet  v.  Denniston,  5  Johns. 
Ch.  (N.  Y.)  35. 

23  Colioes  Co.  V.  Goss,  13  Barb. 
(N.  Y.)  137;  Wilson  v.  Troup,  2 
Cow.  (N.  Y.)  195,  14  .\ni.  Dec.  458. 
See  also  ante.  §  312. 

^^Demarest  v.  ll'ynkoop,  3  Johns. 
Ch.  (N.  Y.)  129,  8  Am.  Dec.  467. 


25  Cohoes  Co.  V.  Goss,  13  Barb. 
(N.  Y.)  137;  Wilson  v.  Troup,  2 
Cow.  (N.  Y.)  195,  231,  14  Am.  Dec. 
458;  Maslin  v.  Marshall,  94  Md.  480, 
51  Atl.  85. 

26  Demarest  v.  Wynkoop,  3  Johns. 
Ch.  (N.  Y.)   129,  8  Am.  Dec.  467. 

^"^  Aver  ill  v.  Taylor,  5  How.  (N. 
Y.)  Pr.  476,  1  N.  Y.  Code  Rep.  N. 
S.  213 ;  Doolittle  v.  Lewis,  7  Johns. 
Ch.  (N.  Y.^  45,  11  Am.  Dec.  389. 

28  7  Johns.  Ch.  (N.  Y.)  25,  affg 
2  Cow.  (N.  Y.)  195,  14  Am.  Dec. 
458. 


§  916]  STATUTORY  FORECLOSURE.  1291 

close  under  the  power  of  sale.  After  a  foreclosure  and  sale, 
he  will  be  deemed  to  hold  the  proceeds  as  trustee  for  the 
parties  in  interest.^'  It  is  believed,  however,  to  be  the  better 
practice  in  those  cases  where  two  or  more  persons  are  jointly 
interested  in  the  mortgage,  for  all  to  join  in  its  foreclosure.^" 

A  deputy  sheriff  may  sell  land  on  foreclosure  of  mortgage 
by  advertisement.'^  Under  the  statutes  of  Michigan,'^  pro- 
viding that  a  bank  may  hold  such  real  estate  as  it  shall  pur- 
chase at  sale  under  judgments,  "decrees  or  mortgage  foreclos- 
ures," under  securities  held  by  it,  a  bank  may  foreclose  by  ad- 
vertisement a  mortgage  containing  a  power  of  sale.''  The 
foreclosure  of  a  mortgage  by  advertisement  in  the  name  of 
the  mortgagee  is  void  where  the  mortgagee  is  at  the  time  de- 
ceased.'* But  a  sale  under  a  power  in  a  trust  deed  is  not  void 
because  the  trustee  was  the  real  owner  of  the  note  secured 
thereby,  at  the  time  the  deed  was  executed.'^ 

The  supreme  court  of  North  Dakota,  say  the  record  must 
show  complete  title  to  the  mortgage  in  a  party  seeking  to 
foreclose  a  mortgage  by  advertisement,  claiming  such  right 
as  assignee;  otherwise  such  foreclosure  will  be  a  nullity.'^ 
And  in  those  cases  where  the  mortgagee  is  dead  a  foreclosure 
by  advertisement  upon  a  notice  of  sale  purporting  to  be  given 
by  authority  of  the  mortgagee,  is  void;  nor  can  it  be  cured 
by  proof  that  in  fact  the  notice  was  given  by  authority  of 
another  person."  Likewise  where  a  sale  is  made  by  a  mort- 
is Solberg  v.  Wright,  ZZ  Minn.  33  Gage  v.  Sanborn,  106  Mich.  269, 
224;  Bottineau  v.  Mtna  Ins.  Co.  31       64  N.  W.  32. 

Minn.    125 ;   Brown  v.  Delaney,  22  34  Welsh  v.  Cooley,  44  Minn.  446, 

Minn.  349.     See  Wilson  v.  Troup,  2      46  N.  W.  908. 

Cow.    (N.    Y.)    195,    14   Am.    Dec.  ^^Cassady  v.    Wallace,    102    Mo. 

458;  Slee  v.  Manhattan   Ins.   Co.    1       575,  15  S.  W.  138. 
Paige  Ch.  (N.  Y.)  48.  ^^  Morris  v.  McKnight,   1   N.   D. 

30  Wilson  V.  Troup,  7  Johns.  Ch.      266,  47  N.  W.  375. 

(N.  Y.)   25  aflf'g  2  Cow.    (N.  Y.)           ^^  Bausman  v.  Kelley,    38    Minn. 

195.  231,  14  Am.  Dec.  458.  197,  36  N.  W.  333,  8  Am.  St.  Rep. 

31  Heinmiller    v.    Hatheway,  60      661. 
Mich.  391.  27  N.  W.  558. 

323  How.  Mich.  Annotated  Stat. 
3208b. 


1292 


MORTGAGE    FORECLOSURES. 


[§    917 


gagee  atter  he  has  parted  with  his  interest  in  the  property  it  is 
void.^' 

§  917.  Notice  of  sale. — Publication.^^ — The  require- 
ments as  to  the  contents  and  publication  of  the  notice  in  fore- 
closure by  advertisement  are  purely  statutory.  The  New  York 
Code  of  Civil  Procedure  provides,*"  that  the  person  entitled 
to  execute  a  power  of  sale  must  give  notice  to  all  parties  in 
the  manner  prescribed,*^  that  the  mortgage  will  be  foreclosed 
by  a  sale  of  the  mortgaged  premises,  or  a  part  thereof,  at  a 
time  and  place  specified  in  the  notice.  It  requires  that  "a 
copy  of  the  notice  must  be  published,  at  least  once  in  each  of 
the  twelve  weeks,  immediately  preceding  the  day  of  the  sale,*^ 
in  a  newspaper  published  in  the  county  or  in  a  municipal  cor- 
poration a  part  of  which  is  within  the  county  in  which  the 
property  to  be  sold,  or  a  part  thereof,  is  situated.*' 

Substantial  compliance  with  the  statutory  requirements  will 
be  sufficient.**     It  is  thought  that  it  is  not  necessary  that  the 


^^  Sadler  v.  Jefferson,  143  Ala. 
669,  39  So.  380. 

3»  See  ante,  §  315. 

«N.  Y.  Code  Civ.  Proc.  §  2388. 

*l  The  provisions  of  the  statute  as 
to  the  publication,  posting  and  serv- 
ice of  the  notice  must  be  strictly- 
complied  with,  or  the  proceedings 
will  be  void.  Cole  v.  Moffitt,  20 
Barb.  (N.  Y.)  18;  Stanton  v.  Kline, 
16  Barb.  (N.  Y.)  9;  King  v.  Dimtz, 
11  Barb.  (N.  Y.)  191;  VanSlyke  v. 
S  held  en,  9  Barb.  (N.  Y.)  278.  See 
also  Ford  v.  Nesbitt,  72  Ark.  267. 
79  S.  W.  793. 

*2  In  computing  the  time  for  the 
publication,  posting  and  service  of 
the  notice,  the  first  day  is  to  be  ex- 
cluded and  the  last  day  included. 
Bu7tce  v.  Reed,  16  Barb.  (N.  Y.) 
347;  Hornby  v.  Crai>icr.  12  How. 
(N.  Y.)  Pr.  490,  493;  IVcstgate  v. 
Handlin,  7  How.  (N.  Y.)  Pr.  372. 


«  N.  Y.  Code  Civ.  Proc.  §  2388. 
As  to  the  notice  of  sale  by  publi- 
cation, see  ante,  §  547.  Where  the 
land  is  situated  in  more  than  one 
county,  the  publication  required  by 
statute  may  be  made  in  a  newspaper 
in  either  county.  Wells  v.  Wells,  47 
Barb.   (N.   "i.)  416. 

'^'^McCardia  v.  Billings,  10  N.  D. 
Z7i,  88  Am.  St.  Rep.  729,  87 
N.  W.  1008.  See  Shaw  v.  Smith, 
as  assignee  etc.  107  Md.  523,  69  Atl. 
116;  Turansky  v.  Weinberg,  211 
Mass.  324,  97  N.  E.  755 ;  Hansom  v. 
Kitterman,  23  S.  D.  220,  121  N.  W. 
389;  Gold  Dirt  Mining  &  Mil- 
ling Co.  v.  Perigo  Mines,  Land  & 
Townsite  Corporation,  48  Colo.  197, 
109  Pac.  263 ;  Weybnrn  v.  Watkins, 
90  Miss.  728,  44  So.  145;  Drake  v. 
Rhodes,  155  Ala.  498,  130  Am.  St. 
Rep.  62,  46  So.  769;  Johnson  v. 
Wood,    125   Ala.   330.   28   So.   454; 


§  917]  STATUTORY  FORECLOSURE.  1293 

sheriff  at  the  time  of  a  foreclosure  sale  by  advertisement  should 
have  before  him  an  affidavit  of  the  notice  of  sale.**  And  in 
the  absence  of  a  requirement  to  that  effect  either  in  the  statute 
or  the  instrument  the  donee  is  under  no  obligation,  so  long  as 
he  acts  within  terms  of  the  power,  to  give  any  notice,  other 
than  the  general  notice  prescribed  in  the  power,  of  what  he 
intends  to  do.*^ 

It  is  thought  that  a  foreclosure  sale  by  advertisement  is 
not  invalidated  by  failure  of  the  notice  of  sale  to  give  the 
book  and  page  of  the  register  of  the  assignment  of  the  mort- 
gage, where  it  is  not  required  by  statute.'*''^  Neither  will 
the  foreclosure  be  invalidated  by  the  fact  that  the  notice  fails 
to  name  the  mortgagor  or  mortgagee  or  any  person  can- 
nected  with  the  mortgage,  if  the  place  of  record  is  correctly 
stated.*® ' 

A  sale  by  advertisement  under  a  power  in  a  mortgage  or 
trust  deed  is  not  invalid  because  the  notice  fails  to  state  the 
actual    amount    due ;  *^    and    a    statutory    foreclosure    under 

Grandin  v.  Emmons,  10  N.  D.  223,  publication    was    completed   before 

54  L.R.A.  610,  88  Am.  St.  Rep.  684,  the  statute  took  effect.     Fowler  v. 

86   N.    W.    723;    Brown   v.    Went-  Lewis,  36  W.  Va.  112,  14  S.  E.  447. 

worth,  181  Mass.  49,  62  N.  E.  984;  ^^  McCammon  v.  Detroit  L.  &  N. 

Baker  v.  Cunningham,  162  Mo.  134,  /?.  Co.  103  Mich.  104,  61  N.  W.  273. 

85  Am.  St.  Rep.  490,  62  S.  W.  445;  ^^  Reynolds  v.  Hennessey,  15  R.  I. 

Mallory  v.  Kessler,  18  Utah  11,  54  513   8  Atl   715. 

Pac.  892;    Wilson  v.   Wall,  99  Va.  ^t  McCammon  v.  Detroit  L.  &  N. 

353,    38    S.    E.    181 ;    Sandusky    v.  ^   ^^^    ^^3  ^j^j^   JQ4  ^^  j^  ^  273. 

Paris,  49  W.  Va.  150   38  S^  E.  563.  «  ^^^^^^  ^    McNamara,  16  R.  I. 

Mary  and    Act,  1889,  c    98,  com-  53^^    ^g  ^^j    j^^      g^^   ^^^  ^^^^^^_ 
monly    known    as    the    Annexation 
Act,  does  not  affect  a  power  of  sale 

contained    in    a    mortgage    further  ^q  c       o                    r>     j  »          loe 

than  to  require  notice  to  be  given  *"  ^ee  Sawyer   v.   Bradshaw,    125 

as  provided  in   the    Baltimore    City  I"-    ^^O-    ^^    ^^    ^-    ^^^'    '^''"^    ^• 

Local  Code,  art.  4,   §  792;   Chilton  ^^^^^^    ^6    Mich.    610,    55    N.    W. 

V.  Brooks,  71  Md.  445,  18  Atl.  868,  ^^■^'^'  ^^^'^  V-  Duane,  69  Hun  (N. 

28  Am.  &  Eng.  Corp.  Cas.  32.  Y.)  28,  23  N.  Y.  Supp.  433,  52  N. 

A  sale  under  West  Virginia  Code,  Y   S.  R.  818. 

1868,  c.  166,  §  2,  is  not  invalid  be-  In  Illinois,  on  a  bill  to  set  aside  a 

cause  the  notice  of  sale  did  not  con-  trust  deed   and   sale   thereunder  as 

form    to    that    statute,    where    its  fraudulent    against    creditors,   com- 


cizski  V.  Smith,  117  Mich.  202,  75 
N.  W.  470. 


1294  MORTGAGE    FORECLOSURES.  [§    917 

the  Michigan  ^°  or  New  York  ®^  statutes,  is  not  vitiated  by  an 
over-statement  in  the  notice  of  sale,  without  fraudulent  in- 
tent, of  the  amount  due  on  the  mortgage,^^ — as  by  including 
a  payment  not  due  at  its  date;  if  it  becomes  due  before  the 
first  publication,  the  mortgagee  does  not  act  in  bad  faith,  and 
no  one  is  misled  thereby.*' 

Where  the  notice  is  published  once  in  each  week  for  twelve 
successive  weeks,  as  required  by  statute,  it  will  be  sufficient, 
even  though  all  the  publications  are  made  within  seventy-eight 
days,  provided  the  first  publication  is  eighty-four  days  prior 
to  the  day  of  sale,  excluding  the  day  on  which  the  sale  is 
made."  The  first  publication,  to  be  sufficient,  must  in  all 
cases  be  at  least  eighty-four  days  before  the  day  of  sale,  the 
first  day  being  excluded  and  the  last  one  included." 

Where  a  mortgage  contains  a  provision  in  a  power  of  sale 
requiring  that  twenty  days'  notice  of  sale  should  be  given 
in  some  newspaper,  this  is  construed  to  mean  a  continuous 
notice  for  twenty  days;  and  a  notice  in  a  daily  newspaper  on 
seven  days  only,  at  intervals  during  twenty  days  preceding 
sale  is  not  sufficient.*^  But  it  is  thought  that  if  the  mortgagee 
in  good  faith  selects  a  weekly  paper,  the  insertion  of  the  notice 
in  each  issue  of  the  paper  for  the  designated  period  will  fulfill 
all  the  requirements."  A  lapse  of  nine  days,  however,  after 
the  last  publication,  renders  the  sale  a  nullity,  when  the  in- 

plainant  cannot  avail  himself  of  the  ^^  Howard  v.  Hatch,  29  Barb.  (N. 

fact  that  a  notice  of  sale  did  not  Y.)  297.    See  Anonymous,  1  Wend, 

state  the  actual  amount  due,  as  re-  (N.  Y.)  90.    See  post,  §  918. 

quired  by  statute.    Sawyer  v.  Brad-  ^^  Bunce  v.   Reed,   16   Barb.    (N. 

shaw,  125  111.  440,  17  N.  E.  812.  Y.)  347. 

50  Cook  V.  Foster,  69  Mich.  610,  56  Washington  v.  Bassett,  15  R.  I. 

55  N.  W.  1019.  563,  10  Atl.  625,  2  Am.  St.  Rep.  929. 

^'^  Lewis  V.  Duane,  69   Hun    (N.  ^"^  Washington  v.  Bassett,  15  R.  I. 

Y.)  28,  23  N.  Y.  Supp.  433,  52  N.  563,   2   Am.    St.   Rep.  929,   10  Atl. 

Y.  S.  R.  818.  625;    Atkinson    v.    Washington    & 

^^  Lewis  V.  Duane,  69  Hun    (N.  Jefferson  College,  54  W.  Va.  32,  46 

Y.)  28,  52  N.  Y.  S.  R.  818,  23  N.  S.  E.  253;  Visard  v.  Moody,  119  Ga. 

Y.  Supp.  433.  918,    47    S.    E.    348;    Hamilton    v. 

53  Cook  V.  Foster,  96  Mich.  610,  Fowler,  99  Fed.  18,  40  C.  C.  A.  47 

55  N.  W.  1019.  (Tenn.).      See    also     Thomas     v. 


§.917]  STATUTORY    FORECLOSURE.  1295 

strument  required  publication  "for  four  weeks  next  before  the 
day  of  sale."  ®^ 

It  is  said  by  the  supreme  court  of  South  Carolina  that  a 
failure  of  a  master  to  advertise  a  sale  under  foreclosure  for 
the  full  statutory  period,  is  a  mere  irregularity  which  will  not 
avoid  the  sale  under  the  statute  of  that  state  ®^  regulating  the 
time  of  the  advertisement,  and  putting  such  sales  on  the  same 
footing  as  those  under  execution.^" 

It  is  thought  that  the  advertisement  of  a  sale  by  an  admin- 
istrator of  a  mortgagee  in  whom,  his  administrators  and  as- 
signs, a  power  of  sale  was  vested,  may  properly  be  signed 
by  him  as  assignee  of  the  mortgagee,  without  setting  out 
that  the  assignment  was  by  act  of  law,  and  not  by  act  of  the 
parties."  It  is  held  in  Minnesota  that  a  notice  of  sale  under 
a  mortgage  with  power  of  sale,  covering  separate  tracts  of 
land  lying  in  different  counties,  need  be  published  only  in  a 
newspaper  in  any  one  of  such  counties,  under  a  statute,^''  pro- 
viding that  the  notice  shall  be  published  in  a  newspaper  printed 
and  published  in  the  county  where  the  premises  intended  to 
be  sold,  "or  some  part  thereof"  are  situated.^'  It  is  said  that 
the  Illinois  statute,  requiring  notice  of  sale  under  a  power  in 
a  mortgage  to  be  published  once  in  a  week  for  four  successive 
weeks  controls,  although  the  mortgage  provides  for  a  differ- 
ent notice.^*     But  a  sale  under  such  power  is  not  void,  but 

Issenhuth,  18  S.  D.  303,  100  N.  W.  premises  under  the  Code,  1888,  art. 

436.  66,  by  virtue  of  a  consent  thereto 

^^  McMahan  v.  American    Build-  contained    in    the    mortgage,     may 

ing    &   Loan    &    Tontine    Savings  properly  be  advertised  in  the  city  of 

Ass'c.  75  Miss.  965,  23  So.  431.  Baltimore     and     confirmed    by    the 

59  S.  C.  Gen  Stat.  §  2424.  circuit  court  of  that  city,  when  at 

6°  Alexander  v.  Messervey,  35  S,  the  time  of  the  sale  the  mortgaged 

C.  409,  14  S.  E.  854.  property   is   within  the   city   limits, 

61  Thurber  v.  Carpenter,  18  R.  I.  though   it  was    not    so    when    the 
782,  31  Atl.  5.  mortgage    was    made.     Roberts    v. 

62  Minn.  Gen.  Stat.  1878,  c.  81,  §  5.  Loyola   Perpetual   Bldg.   Assoc.   74 

63  Paulle  V.  Wallis,  58  Minn.  192,  Md.  1,  21  Atl.  684. 

59  N.  W.  999.  64  Cornell  v.  Newkirk,  144  111.  241, 

In  Maryland  a  sale  of  mortgaged       Zi  N.  E.  Z7,  aff'g.  44  111.  App.  487 


1296  MORTGAGE    FORECLOSURES.  [§    918 

only  voidable,  because  of  failure  to  comply  with  the  statute  re- 
quiring notice  to  be  published  for  four  successive  weeks,  where 
actual  notice  is  given  and  the  property  sells  for  its  full  value.^* 
A  sale,  however,  under  a  naked  power  of  sale  in  a  trust  deed 
is  invalid  where,  after  three  days'  publication  of  notice,  it  is 
discovered  that  the  day  advertised  for  the  sale  will  fall  on 
Sunday,  whereupon  the  notice  is  changed  to  read  the  follow- 
ing day,  and  as  thus  corrected  is  published,  after  the  change 
is  made,  one  day  less  than  the  time  which  is  required  by  the 
trust  deed.^^ 

§  918.  What  is  a  valid  publication  of  the  notice. — The 

publication  of  the  notice  of  sale  in  foreclosure  by  advertise- 
ment must  strictly  comply  with  the  requirements  of  the  statute 
and  the  mortgage.®'  Thus  it  has  been  said  that  an  attempt  to 
foreclose  a  mortgage  by  advertisement  under  the  Maine  stat- 
ute ®^  is  fatally  defective  unless  the  date  of  the  newspaper  in 
which  the  notice  was  last  published  is  recorded.®^  But  in  those 
cases  where  the  record  of  a  mortgage  incorrectly  states  the 
place  where  publication  is  to  be  made,  this  will  not  avoid  the 
notice  and  invalidate  the  sale  where  the  notice  is  duly  pub- 
lished as  required  in  the  mortgage.''''' 

The  validity  of  the  publication  will  not  be  affected  by  the 
fact  that  the  paper  in  which  the  notice  was  published  was  not 
calculated  to  give  general  information  of  the  sale.'"^  Neither 
will  a  change  in  the  name  of  the  paper  in  which  the  notice 
is  inserted,  and  its  removal  to  and  consolidation  with  another 

^^  Cornell  V.  Newkirk,  144  l\\.  241,  652;  National  Loan  &  Investment 

33  N.  E.  Z1,  aff'g.  44  111.  App.  487.  Co.  v.  Dorenblaser,    30    Tex.    Civ. 

66  Wolff  V.  Ward,  104  Mo.  127,  16  App.  148,  69  S.  W.  1019. 

S.  W.  161.  68  Me.  Rev.  Stat.  c.  90,  §  5. 

^  Brett  V.  Davenport,  as  trustee,  ^^  Mollis  v.  Mollis,  84  Me.  96,  24 

etc.    151    N.   C.   56,   65    S.   E.   611;  Atl.  581. 

Clark  V.  Burke,  39  S.  W.  306  (Tex.)  7°  Colgan  v.  McNamara,  16  R.  I. 

See  Moore  v.  Dick,  187  Mass.  207,  554.  18  Atl.  157. 

72  N.  E.  967;  Quinn  v.  McDole,  28  '^^  Blake  v.  Dennett,  49  Me.   102. 

R.  1.  327.  67  Atl.  Z27 ;  Childs  v.  Hill,  See  Bragdon  v.  Hatch,  77  Me.  433. 
20  Tex.   Civ.   App.   162,  49  S.   W. 


§    918]  STATUTORY    FORECLOSURES.  1297 

paper  in  the  same  county,  affect  the  validity  of  the  publication 
of  the  notice,  provided  the  paper  otherwise  retains  its  identity 
and  the  advertisement  is  regularly  inserted.'^ 

Where  the  publication  of  the  notice  of  sale  is  defective,  in 
not  being  made  as  required  by  statute,  the  proceedings  will 
be  void.  Thus,  the  publication  of  such  a  notice  in  a  weekly 
newspaper  dated  on  Saturday,  the  greater  part  of  the  edition 
being  printed  on  Friday,  has  been  held  not  to  be  a  sufficient 
publication  within  the  statute  for  the  foreclosure  of  a  mort- 
gage maturing  on  such  Friday.''  Where  the  original  publica- 
tion of  a  notice  is  defective,  a  republication  thereof,  with  sev- 
eral notices  of  postponement,  for  twelve  weeks,  will  be  a 
sufficient  compliance  with  the  statute.'''* 

Where  the  Code  requires  that  the  first  publication  of  the  no- 
tice must  be  eighty-four  days  prior  to  the  day  of  sale  specified 
in  the  notice,  it  is  thought  that  the  twelve  publicaitons  may 
be  made  in  less  than  eighty-four  days,  if  they  are  made  once 
a  week  for  twelve  weeks.'® 

The  supreme  judicial  court  of  Massachusetts,  in  the  case 
of  Steveson  v.  Hano,'^  say  that  a  sale  under  a  power  in  a 
mortgage,  requiring  an  advertisement  to  be  made  in  "one 
newspaper  published  in  Boston,"  is  properly  advertised  in  a 
paper  published  in  Brighton,  which  is  a  part  of  Boston,  al- 
though having  a  circulation  of  only  about  500  copies,  where 
the  property  is  an  unoccupied  lot  of  moderate  value,  and  the 
newspaper  is  the  one  nearest  to  the  land,  and  is  read  among 
the  neighbors.''  And  the  supreme  court  of  Rhode  Island, 
in  the  case  of  Colgan  v.  McNamara,'®  hold  that  an  advertise- 
ment of  a  sale  under  a  power  contained  in  a  mortgage  which 
required  publication  of  notice  in  some  newspaper  in  the  county 

'''^Perkins  v.  Keller,  43  Mich.  53.  (N.    Y.)    406;    Gantz   v.    Toles,   40 

^^  Pratt  V.  Tinkcom,  21  Minn.  142.  Mich.  725.     See  ante,  §  917. 

"^^Cole  V.   Moffitt,  20   Barb.    (N.  76  143  Mass.  616,  20  N.  E.  200. 

Y.)  18.  77  Sgg  Hedlin  v.  Lee,  as  sheriff, 

''^Howard  v.  Hatch,  29  Barb.  (N.  etc.  21  N    D.  495,  131  N.  W.  390. 
Y.)  297;  George  v.  Arthur,  2  Hun  78  ig  r.  j    554^  13  Atl.  157. 

Mortg.  Vol.  II.— 82. 


1298  MORTGAGE    FORECLOSURES.  [§    919 

of  Providence,  in  said  state,  is  not  insufficient  because  it  ap- 
peared in  a  newspaper  published  at  a  place  in  the  county  other 
than  one  of  two  certain  cities  in  which  the  record  of  the  mort- 
gage erroneously  required  notice  to  be  published. 

§  919.  Posting  notice  of  sale. — The  New  York  Code 
provides,'^  that  "a  copy  of  the  notice  must  be  fastened  up, 
at  least  eighty-four  days  before  the  day  of  the  sale,  in  a 
conspicuous  place,  at  or  near  the  entrance  of  the  building, 
where  the  county  court  of  each  county,  wherein  the  prop- 
erty to  be  sold  is  situated,  is  directed  to  be  held;  or,  if 
there  are  two  or  more  such  buildings  in  the  same  county, 
then  in  a  like  place,  at  or  near  the  entrance  of  the  building 
nearest  to  the  property;  or,  in  the  city  and  county  of  New 
York,  in  a  like  place,  at  or  near  the  entrance  of  the  build- 
ing, where  the  trial  and  special  terms  of  the  supreme  court 
of  the  first  judicial  district  are  directed  by  law  to  be  held.'^ 

It  is  only  required  that  the  notice  should  be  affixed  to  the 
door  of  the  building  where  the  county  courts  are  held ;  it  is 
not  necessary  for  the  person  who  affixed  the  notice  to  see  it 
there  afterwards,*"  because  where  the  notice  is  once  affixed, 
it  is  presumed  that  it  will  remain  so.  Affixing  the  notice  once 
seems  to  satisfy  the  words  of  the  statute,  and  it  is  said  that 
a  weekly  inspection,  though  prudent,  is  not  necessary.®^  Where 
the  land  is  situated  in  two  or  more  counties,  the  notice  of  sale 
must  be  fastened  up  at  or  near  the  court  house  door  in  each 
county,  in  order  to  sustain  the  sale  of  the  land  in  that  county.'* 

§  920.  Delivering  notice  of  sale  to  county  clerk — His 
duty. — The  New  York  Code  also  provides,*^  that  "a  copy 

79  N.  Y.  Code  Civ.  Proc.  §  2388.  ^^  Wells  v.   Wells,  47  Barb.    (N. 

soMerritt  v.  Bowen,  7  Cow.   (N.       Y.)  416. 
Y.)  13;  Hornby  v.  Cramer,  12  How.  ^^N.  Y.  Code  Civ.  Proc.  §  2388. 

(N.  Y.)  Pr.  490. 

8^  Hornby    v.    Cramer,    12    How. 
(N.  Y.)  Pr.  490. 


§  921]  STATUTORY  FORECLOSURE.  1299 

of  the  notice  must  be  delivered,  at  least  eighty-four  days  before 
the  day  of  sale,  to  the  clerk  of  each  county,  wherein  the  mort- 
gaged property,  or  any  part  thereof,  is  situated."  **  Where  a 
notice  of  sale  filed  in  the  clerk's  office  and  published  for  the 
first  four  weeks,  was,  by  mistake,  dated  April  23.  1858,  in- 
stead of  1868,  the  court  held  that  the  mistake  was  obvious  on 
inspection  and  could  not  have  misled  any  one,  and  for  that 
reason  did  not  invalidate  the  proceedings.*^ 

"A  county  clerk,  to  whom  a  copy  of  a  notice  of  sale  is  de- 
livered, as  prescribed  by  the  Code,*^  must  forthwith  affix  it 
in  a  book,  kept  in  his  office  for  that  purpose;  must  make  and 
subscribe  a  minute,  at  the  bottom  of  the  copy,  of  the  time  when 
he  received  and  affixed  it ;  and  must  index  the  notice  to  the 
name  of  the  mortgagor."  " 

The  supreme  court  of  New  York,  in  the  case  of  Van 
Vleck  V.  Enos,®*  say  that  the  omission  of  the  clerk  to  enter  in 
the  book  in  which  notices  of  foreclosures  and  sale  were  affixed, 
at  the  bottom  of  the  notice,  the  time  of  receiving  and  affixing 
the  same,  and  to  index  the  notices  to  the  name  of  the  mort- 
gagor, as  required  by  the  New  York  statutes  with  reference 
to  foreclosure  by  advertisement  as  they  stood  in  1869,  is 
fatal  to  the  validity  of  the  foreclosure. 

§  921.  Personal  service  of  notice — Who  entitled  to. — 

The  parties  who  are  to  be  served  with  the  notice  of  sale  on  a 
foreclosure  by  advertisement,  are  those  whom  the  statute  di- 
rects to  be  served  and  no  others,  because  a  sale  under  a  power, 
which  conforms  to  the  statute  regulating  such  sales,  forecloses 
all  rights  and  interests  which  are  subject  to  the  power,'^  and 
service  upon  parties  not  subject  to  such  power  is  invalid. 
The  New  York  Code  ^°  requires  that  a  copy  of  the  notice 

84  Wells  V.   Wells,  47  Barb.    (N.  87  n.  Y.  Code  Civ.  Proc.  §  2390. 
Y.)  416.  88  88  Hun  (N.  Y.)  348,  34  N.  Y. 

85  Mowry  v.   Sanborn,  68   N.   Y.       Supp.  754. 

163,  reversing  62  Barb.  (N.  Y.)  223,  89  Brackett  v.  Baum.  50  X.  Y.  8. 

65  N.  Y.  581.  »»  N.  Y.  Code  Civ.  Proc.  §  2388. 

86  §  2388,  subd.  3. 


1300 


lORTGAGE    FORECLOSURES. 


[§  921 


must  be  served  on  the  mortgagor,  or  if  he  is  dead,  upon  his  ex- 
evutor  or  administrator,  if  one  has  been  appointed,  and  also  up- 
on his  heirs,  providing  he  died  the  owner  of  the  mortgaged 
premises.  A  copy  may  also  be  served  upon  other  persons  hav- 
ing an  interest  in  the  premises,  such  as  subsequent  grantees, 
mortgagees,  judgment  creditors  or  other  lienors.^^  It  is  held 
that  service  of  the  notice  is  as  necessary  as  the  publication  or 
posting  thereof. ^^ 

"The  notice  is  required  to  be  subscribed  by  the  person  en- 
titled to  execute  the  power  of  sale,  unless  his  name  distinctly 
appears  in  the  body  of  the  notice,  in  which  case  it  may  be 
subscribed  by  his  attorney  or  agent."  ^^  If  service  of  the 
notice  is  not  made  upon  a  party  entitled  thereto,  his  claim 
will  not  be  barred  or  foreclosed,  nor  will  his  rights  be  affected 
by  the  sale;  the  assignee  of  a  subsequent  incumbrance  stands 
in  place  of  the  original  owaier  thereof.  Actual  notice  of 
the  sale  will  not  be  sufficient.^* 

Notice  of  the  sale  must  be  given  to  the  mortgagor,^^  and 
also  to  the  owner  of  the  equity  of  redemption,  or  the  sale 
will  be  void  as  to  them.^^ 

Where  a  junior  mortgagee  is  in  possession,  a  foreclosure 
by  advertisement  of  a  prior  mortgage  without  notice  to  him 
is  void ;  ^"^  but  no  subsequent  waiver  of  the  failure  to  serve 


91  See  post,  §§  922-925. 

"^^Rathbone  v.  Clarke,  9  Abb.  (N. 
Y.)  Pr.  66,  note;  Cole  v.  Moffitt,  20 
Barb.  (N.  Y.)  18;  Stanton  v.  Kline, 
16  Barb.  (N.  Y.)  9;  King  v.  Dunts, 
11  Barb.  (N.  Y.)  191;  VanSlyke  v. 
Sheldon,  9  Barb.  (N.  Y.)  278. 

93  N.  Y.  Code  Civ.  Proc.  §  2388. 

9*  Mowry  v.  Sanborn,  65  N.  Y. 
581;  Root  V.  Wheeler,  12  Abb.  (N. 
Y.)  Pr.  294;  Dwight  v.  Phillips,  48 
Barb.  (N.  Y.)  116;  Winslow  v. 
McCall,  32  Barb.  (N.  Y.)  241; 
Wetmore  v.  Roberts,  10  How.  (N. 
Y.)  Pr.  51;  Mickles  v.  Dillaye,  15 
Hun  (N.  Y.)  296. 


95  N.  Y.  Code  Civ.  Proc.  §  2388. 
But  see  Grove  v.  Great  Northern 
Loan  Co.  17  N.  D.  352,  138  Am.  St. 
Rep.  707,  116  N.  W.  345. 

In  Texas,  personal  notice  is  un- 
necessary. Georgi  v.  Juergen,  66  S. 
W.  873.  (Tex.)  ;  Fischer  v.  Simon, 
4  Tex.  39,  46  S.  W.  447. 

96  St.  John  V.  Bumpstead,  17  Barb. 
(N.  Y.)  319;  Kellogg  v.  Dennis,  38 
Misc.  82,  77  N.  Y.  Supp.  172.  But 
see  Shea  v.  Ballard,  61  W.  Va.  255, 
123  Am.  St.  Rep.  981,  56  S.  E.  472. 

97  Casey  v.  Mclntyre,  45  Minn. 
526,  48  N.  W.  402. 


§    922]  STATUTORY    FORECLOSURE.  1301 

notice  by  such  occupant  of  the  premises  who  is  not  the  owner 
or  authorized  to  bind  him  in  the  premises,  will  vahidate  the 
foreclosure  of  a  prior  mortgage  by  advertisement,  as  respects 
the  owner.  And  the  supreme  court  of  Minnesota  say  that 
acts  of  ownership  without  actual  occupancy  are  insufficient 
to  put  in  operation  the  provision  of  the  statute  of  that  state,^^ 
requiring  that  upon  foreclosure  of  a  mortgage  by  advertise- 
ment, a  copy  of  the  published  notice  shall  be  served,  in  like 
manner  as  a  summons,  on  the  person  in  possession  of  the 
mortgaged  premises,  if  the  same  are  actually  occupied. ^^ 

The  presumption  of  the  regularity  of  the  proceedings  in 
a  foreclosure  by  advertisement,  which  arises  from  the  certifi- 
cate of  sale,  is  rebutted  by  proof  of  failure  to  serve  notice  upon 
the  occupant  of  the  premises,  where  he  is  not  the  owner ;  and 
the  certificate  is  not  presumptive  evidence  in  that  case  of  the 
actual  service  of  notice  upon  the  owner.^ 

§  922.  Service  on  personal  representatives. — Where 
the  mortgagor  is  dead,  the  notice  must  be  served  on  his  ex- 
ecutor or  administrator,^  and  where  there  is  none,  one  must 
be  appointed,  and  the  prescribed  service  must  be  made  upon 
him,  in  order  to  secure  a  valid  foreclosure.^ 

It  has  been  said,  however,  that  if  personal  representatives 
have  not  been  appointed,  a  foreclosure  by  advertisement  is 
good,  if  conducted  in  the  mode  prescribed  by  statute,  without 
service  of  the  notice  required  to  be  served  on  the  mortgagor's 
personal  representative.*     The   words    "personal   representa- 

98  Minn.  Gen.  Stat.  1878.  c.  81,  tit.  Y.)   422,  N.  Y.  Code  Civ.   Proc.  § 

1,  p.  842.  2388. 

^^ Moultonv.  Sidle,  52  Fed.  616.  ^Mackenzie   v.    Alster,   64   How. 

^  Casey  v.McIntyre,  AS  M\m.S26,  (N.    Y.)    Pr.    388;    VanSchaack   v. 

48  N.  W.  402.  Saunders,  32  Hun  (N.  Y.)  515. 

2  Co/?  V.  Afo^«,  20  Barb.  (N.  Y.)  ^Stanley    v.    Freckleton,  65  Hun 

18;  St.  John  v.  Bumpstead,  17  Barb.  (N.  Y.)  138,  19  N.  Y.  Supp.  913,  47 

(N.  Y.)    100;  Mackenzie  v.  Alster,  N.  Y.  S.  R.  383;  Bond  v.  Bond,  51 

64  How.   (N.    Y.)    Pr.    388;    Van-  Hun   (N.  Y.)   507,  21  N.  Y.  S.  R. 

Schaack  v.  Saunders,  32  Hun   (N.  682. 
Y.)  515;  Low  v.  Piirdy,  2  Lans.  (N. 


1302 


MORTGAGE    FORECLOSURES. 


L§  923 


tive,"  as  used  in  the  statute  regulating  foreclosures  by  adver- 
tisement, mean  "executor  or  administrator,"  and  not  heir 
or  devisee.^  If  the  mortgagor  died  owner  of  the  mortgaged 
premises,  the  notice  must  also  be  served  upon  his  heirs.^ 

§  923.  Service  of  notice  on  subsequent  grantees  and 
lienors. — It  is  necessary  to  give  the  owner  of  the  equity 
of  redemption  notice,  in  order  to  make  a  foreclosure  valid  as 
against  him.'  As  it  is  also  necessary  to  give  notice  to  a  junior 
mortgagee,'  or  his  assignee,  in  order  to  render  the  foreclosure 
of  a  senior  mortgage  valid  as  against  him,  the  assignment 
should  be  recorded,  or  the  assignee  will  not  be  entitled  to  no- 
tice.^   The  holder  of  a  junior  mortgage,  through  an  unrecord- 


5  See  Anderson  v.  Austin,  34 
Barb.  (N.  Y.)  319,  where  the  rule 
that,  under  a  statutory  foreclosure 
by  advertisement,  notice  of  the  sale 
must  be  given  to  the  personal  repre- 
sentatives of  a  deceased  mortgagor, 
vvras  construed  in  an  action  for  par- 
tition between  the  heirs  at  law  of 
such  mortgagor,  and  a  purchaser 
upon  such  a  foreclosure  sale, — 
where  two  mortgagors,  husband  and 
wife,  owning  separate  parcels, 
united  in  a  mortgage  covering  both 
parcels,  and  the  husband  left  a  will 
devising  the  premises  and  naming 
executors,  but  none  were  ever  ap- 
pointed or  qualified,  nor  were  ad- 
ministrators with  the  will  annexed 
ever  appointed  upon  his  estate,  and 
the  wife  died  intestate,  and  no 
letters  of  administration  were  is- 
sued upon  her  estate.  VanSchaack 
v.  Saunders,  32  Hun  (N.  Y.)  515, 
citing  Mowry  v.  Sanborn,  68  N.  Y. 
153;  In  re  Second  Ave.  Methodist 
Episc.  Church,  66  N.  Y.  395 ;  Hart- 
nett  V.  Wandell,  60  N.  Y.  346,  349, 
19  Am.  Rep.  194;  Lawrence  v. 
Farmers'  Loan  &  Trust  Co.  13  N. 
Y.    211;    Anderson    v.    Austin,    34 


Barb.  (N.  Y.)  319;  Bryan  v.  Butts, 
27  Barb.  (N.  Y.)  503;  Cole  v. 
Moffitt,  20  Barb.  (N.  Y.)  18;  Co- 
hoes  Co.  V.  Goss,  13  Barb.  (N.  Y.) 
137;  King  v.  Duntz,  11  Barb.  (N. 
Y.)  191;  Mackenzie  v.  Alster,  64 
How.  (N.  Y.)  Pr.  388,  12  Abb.  (N. 
Y.)  N.  C.  110;  Northrup  v.  Wheel- 
er, 43  How.  (N.  Y.)  Pr.  123; 
Leonard  v.  Morris,  9  Paige  Ch.  (N. 
Y.)  90;  Shillaber  v.  Robinson,  97 
U.  S.  (7  Otto)  68,  24  L.  ed.  967, 
2  Barb.  Ch.  Pr.  (2d  ed.)   176. 

In  North  Carolina,  service  of 
notice  on  the  heirs  of  a  deceased 
mortgagor  is  not  necessary.  Carter 
v.  Slocomb,  122  N.  C.  475,  65  Am. 
St.  Rep.  714,  29  S.  E.  720. 

6  N.  Y.  Code  Civ.  Proc.  §  2388. 

■^  St.  John  V.  Bumpstead,  17  Barb. 
(N.  Y.)  100,  N.  Y.  Code  Civ.  Proc. 
§  2388.  But  see  Atkinson  v.  Wash- 
ington &  Jefferson  College,  54  W, 
Va.  Z2,  46  S.  E.  253. 

8  In  Texas,  a  junior  incumbrancer 
is  not  entitled  to  notice  of  sale. 
Hampshire  V.  Greeves,  143  S.  W. 
147.     (Tex.). 

9  Winslow  V.  McCall,  32  Barb. 
(N.  Y.)  241;  Wetmore  v.  Roberts, 


§    924]  STATUTORY    FORECLOSURE.  1303 

ed  assignment,  must  be  served  with  notice,  where  the  foreclos- 
ing mortgagee  has  actual  knowledge  of  the  interest  of  such 
assignee.^" 

Subsequent  grantees  and  mortgagees,  whose  conveyances 
or  mortgages  are  not  recorded  at  the  time  of  the  first  publica- 
tion of  the  notice,  are  not  entitled  to  service  thereof,  where 
their  interests  are  unknown  to  the  foreclosing  mortgagee ;  ** 
but  where  the  statute  requires  notice  to  be  served,  not  only 
on  those  subsequent  grantees  and  mortgagees  whose  convey- 
ances shall  be  upon  record  at  the  time  of  the  first  publication 
of  the  notice,  but  also  upon  all  persons  having  a  lien  by  or 
under  a  judgment,  it  has  been  held,  that  the  lien  of  a  judg- 
ment perfected  after  the  publication  of  the  first  notice,  but 
before  the  sale  will  not  be  extinguished,  unless  notice  is 
served  upon  the  judgment  creditor  as  required  by  statute." 

In  the  event  of  the  death  of  the  subsequent  grantee  who 
was  at  the  time  of  his  death  the  ov/ner  of  the  mortgaged 
premises,  service  may  be  made  upon  his  heirs.^^ 

In  New  York  it  is  held  that  an  assignee  in  bankruptcy  is 
not  entitled  to  notice  of  sale  on  foreclosure  by  advertisement, 
unless  the  conveyance  to  him  is  recorded  at  the  time  of  the 
first  publication  of  notice;  he  being  a  subsequent  grantee  upon 
whom  service  of  the  notice  is  required,  under  the  New  York 
statute,"  only  in  case  his  conveyance  is  upon  record  at  the 
time  of  such  publication.^^ 

§  924.  Service  of  notice  on  wife  or  widow  of  mort- 
gagor or  his  grantee. — The  New  York  Code  requires, ^^ 

10  How.    (N.  Y.)    Pr.  51;  Decker  "  n.  Y.  Code  Civ.  Proc.  §  2388. 

V.  Boice,  19  Hun  (N.  Y.)   152.  subd.  4. 

^^Soule  V.   Ludlow,  3   Hun    (N.  "  N.  Y.  Code  Civ.  Proc.  §  2388. 

Y.)  503,  6  T.  &  C.  24.  ^^  Ostrander  v.  Hart,    30    N.    E. 

"  See  Decker  v.   Boice,   19   Hun  504,  43  N.  Y.  S.    R.    910,    affg    on 

<N.  Y.)   152,  aff'd  83  N.  Y.  215  N.  rehearing,  130  N.  Y.  406,  29  N.  E. 

Y.  Code  Civ.  Proc.  §  2388.  subd.  4.  744.  42  N.  Y.  S.  R.  513. 

12  Grog  V.  Morehouse,  51  N.  Y.  is  n.  Y.  Code  Civ.  Proc.  §  2388. 
503. 


1304  MORTGAGE    FORECLOSURES.  [§    925 

that  a  copy  of  the  notice  of  sale  shall  be  served  "upon  the 
wife  or  widow  of  the  mortgagor,  and  upon  the  wife  or  wid- 
ow of  each  subsequent  grantee,  whose  conveyance  was  so 
recorded,  then  having  an  inchoate  or  vested  right  of  dow- 
er, or  an  estate  in  dower,  subordinate  to  the  lien  of  the 
mortgagee."  Where  a  wife  has  joined  her  husband  in  the 
execution  of  a  mortgage,  she  thereby  becomes  a  mort- 
srasfor,  and  as  such  is  entitled  to  service  of  notice." 

The  inchoate  dower  of  the  wife  of  the  owner  of  premises, 
which  are  subject  to  a  mortgage  for  the  purchase  money,  will 
not  be  barred  by  foreclosure  by  advertisement,  unless  she  is 
served  with  a  notice  of  the  sale."  Service  on  her  husband 
alone  will  not  be  sufficient,  for  while  a  wife  does  not  derive 
title  from  her  husband,  yet  she  claims  under  him  within  the 
meaning  of  the  statute,  and  a  sale  under  the  power  must  be 
regularly  made  in  order  to  bar  her  dower." 

While  an  omission  to  serve  the  notice  upon  the  mortgagor's 
widow,  where  she  joined  him  in  the  execution  of  the  mort- 
gage, is  probably  not  fatal  to  the  foreclosure,  yet  it  is  such  a 
defect  that  her  dower  will  not  be  barred.^"  The  wife  of  a  sub- 
sequent grantee  of  mortgaged  premises,  is  entitled  to  service 
of  the  notice  of  foreclosure  by  advertisement;  if  she  is  not 
served,  her  right  of  dower  will  not  be  cut  off.^^  And  the  wife 
of  a  grantee  of  premises  already  mortgaged  for  part  of  the 
purchase  money,  should  be  served  with  the  notice,  in  order  to 
bar  her  inchoate  right  of  dower.^^ 

§  925.  Service  of  notice  upon  subsequent  lienors.— The 
New  York  Code  requires  the  notice  to  be  served  upon  every 

^"^  Anderson   v.   Austin,  34   Barb.  ^^  King   v.   Duntz,    11    Barb.    (N. 

(N.  Y.)   319;    King    v.    Duntc,    11  Y.)  191. 

Barb.   (N.  Y.)   191;  Low  v.  Purdy,  ^^  Raynor  v.  Raynor,  21  Hun  (N. 

2  Lans.  (N.  Y.)  422.  Y.)  36.     See  Northrop  v.  Wheeler, 

^6  Northrop  v.  Wheeler,  43  How.  43  How.   (N.  Y.)  Pr.  122. 

(N.  Y.)   Pr.  122.  ^z  Northrop  v.  Wheeler,  43  How. 

i^Brackett  v.  Baitm,  50  N.  Y.  8.  (N.  Y.)   Pr.  122. 


§  926]  STATUTORY  FORECLOSURE.  1305 

"person  having  a  lien  upon  the  property  subsequent  to  the 
mortgage,  by  virtue  of  a  judgment  or  decree,  duly  docketed  in 
the  county  clerk's  office,  and  constituting  a  specific  or  general 
lien  upon  the  property."  ^^  It  seems  that  the  lien  of  a  person 
entitled  to  notice,  but  upon  whom  the  notice  was  not  served,  is 
not  destroyed  nor  in  any  way  affected  by  the  sale,  even  though 
he  had  actual  notice  of  such  sale.^* 

All  judgment  creditors,  whose  liens  were  perfected  subse- 
quently to  the  mortgage,  are  entitled  to  notice ;  and  where 
the  statute  requires  the  notice  to  be  served  upon  every  person 
having  a  lien  by  or  under  a  judgment,  the  lien  of  a  judgment 
perfected  after  the  publication  of  the  first  notice,  and  before 
the  sale,  will  not  be  cut  off,  and  the  lienor's  right  or  redemp- 
tion will  not  be  barred,  unless  notice  is  served  upon  him  as 
prescribed  by  the  statute.^^ 

§  926.  Service    of    notice    of    sale — How  made. — The 

New  York  Code  of  Civil  Procedure  provides,^^  that  service 
of  the  notice  of  sale  must  be  made  as  follows:  (1)  "Upon 
the  mortgagor,  his  wife,  widow,  executor,  or  administrator, 
or  a  subsequent  grantee  of  the  property,  whose  convevance 
is  upon  record,  or  his  wife  or  widow;  by  delivering  a  copy 
of  the  notice,  as  prescribed  in  article  first  of  title  first  of  chap- 
ter fifth  of  this  act,  for  delivery  of  a  copy  of  a  summons,  in 
order  to  make  personal  service  thereof  upon  the  person  to 
be  served;  or  by  leaving  such  a  copy,  addressed  to  the  person 
to  be  served,  at  his  dwelling-house,  with  a  person  of  suitable 
age  and  discretion,^'  at  least  fourteen  days  before  the  day  of 
sale.  If  said  mortgagor  is  a  foreign  corporation,  or  being  a 
neutral  person,  he,  or  his  wife,  widow,  executor,  or  adminis- 
trator, or  a  subsecjuent  grantee  of  the  property,  whose  convey- 

23  N.  Y.  Code  Civ.  Proc.  §  2388.  26  N.  Y.  Code  Civ.  Proc.  §  2389. 

^*  Root  V.   Wheeler,  12  Abb.   (N.  27  ggg    Brigham    v.     Conuecticut 

Y.)    Pr.  294;    Wetmore  v.  Roberts,  Mutual  Life  Ins.  Co.  79  Minn.  350, 

to  How.  (N.  Y.)   Pr.  51.  82  N.  W.  668. 

^  Groff  V.  Morehouse,  51   N.  Y. 
503. 


1306  MORTGAGE    FORECLOSURES.  [§    927 

ance  is  upon  record,  or  his  wife  or  widow,  is  not  a  resident 
of  or  within  the  state,  then  service  thereof  may  be  made  upon 
them  in  like  manner,  without  the  state,  at  least  twenty-eight 
days  prior  to  the  day  of  sale."  ^® 

(2)  "Upon  any  other  person,  either  in  the  same  method,  or 
by  depositing  a  copy  of  the  notice  in  the  post-office,  properly 
inclosed  in  a  post-paid  wrapper,  directed  to  the  person  to  be 
served,  at  his  place  of  residence,  at  least  twenty-eight  days  be- 
fore the  day  of  sale."  ^^ 

§  927.  Service  of  notice  by  mail. — In  foreclosing  a 
mortgage  by  advertisement,  personal  service  of  the  notice  of 
sale  is  not  always  necessary,  though  the  parties  to  be  served 
may  reside  in  the  same  town  as  the  party  foreclosing,  or  his 
attorney.  It  will  be  a  sufficient  compliance  with  the  statute, 
if  properly  directed  copies  of  the  notice  of  sale  are  deposited 
in  the  post-office,  addressed  to  the  parties  to  be  served  at 
the  places  where  they  reside.^" 

Notice  of  the  sale  may  be  served  on  the  mortgagor  by 
mail,  by  depositing  a  properly  directed  copy  thereof  in  any 
post-office  in  the  state.'^  If,  by  mistake,  the  notice  is  addressed 
to  the  mortgagor  at  a  place  other  than  his  residence,  the  sale 
made  thereunder  will  be  void.^^  The  affidavit  of  service  must 
show  that  the  places  to  which  the  notices  were  mailed  to  the 
parties  addressed,  were  the  actual  residences  of  such  parties.^' 
Where  the  affidavit  fails  to  show  these  facts,  the  omissions 
will  be  fatal,  because  the  proceedings  to  foreclose  a  mortgage 
by  advertisement  are  strictly  statutory,  and  omissions  cannot 
be  subsequently  supplied,  nor  defects  in  the  affidavits  reme- 
died, in  a  court  of  equity.^* 

28  N.  Y.  Code  Civ.  Proc.  §  2389,  32  Robinson  v.  Ryan,  25  N.  Y.  320. 
as  amended  by  Laws  of  1887,  chap.  ^^  Dwiglit  v.  Phillips,  48  Barb. 
685,  see  also  §  419  et  seq.  (N.  Y.)   116. 

29  N.  Y.  Code  Civ.  Proc.  §  2389.  3*  D wight  v.   Phillips,    48    Barb. 

30  5" ^an/on  V.  /^/m^,  11  N.  Y.  196.       (N.    Y.)     116.      Contra,    Bunce    v. 
^^Bnnce   v.   Reed.    16   Barb.    (N.       Reed,  16  Barb.  (N.  Y.)  347. 

Y.)  347. 


§    928]  STATUTORY    FORECLOSURE.  1307 

It  has  been  said,  that  under  a  statute  requiring  the  notice 
to  be  folded  and  directed,  the  direction  must  be  written  on 
the  notice  itself,  if  it  is  sent  unsealed;  if  the  direction  is 
written  upon  an  unsealed  envelope,  containing  a  notice  sent 
as  a  circular,  the  service  will  not  be  sufficient.'®  If  service  of 
the  notice  is  made  by  mail,  the  time  is  to  be  counted  from  its 
deposit,  and  not  from  the  date  of  the  post-mark,  or  the  time  of 
forwarding.'^  Where  the  service  is  made  by  mail  upon  a  per- 
son, naming  his  as  "administrator,"  such  service  will  be 
sufficient,  if  the  notice  is  addressed  to  the  proper  person,  with- 
out adding  the  word  "administrator."  '' 

§  928.  Contents  of  notice  of  sale. — The  New  York- 
Code  of  Civil  Procedure  requires,'*  that  the  notice  of  sale  must 
specify:  "(1)  The  names  of  the  mortgagor.'^  of  the  mort- 
gagee and  of  each  assignee  ^  of  the  mortgage.  (2)  The  date 
of  the  mortgage,*^  and  the  time  when,  and  the  place  where, 
it  is  recorded.  (3)  The  sum  claimed  to  be  due  upon  the  mort- 
gage, at  the  time  of  the  first  publication  of  the  notice,  and.  if 
any  sum  secured  by  the  mortgage  is  not  then  due,  the  amount 
to  become  due  thereupon.  (4)  A  description  of  the  mortgaged 
property,  conforming  substantially  to  that  contained  in  the 
mortgage." 

The  notice  should  show  that  the  purpose  of  the  sale  is  to 

35  Rathbone  v.  Clarke,  9  Abb.  (N.  See  Howard  v.  Hatch,  29  Barb.  (N. 

Y.)  Pr.  66  n.  Y.)  297. 

^^  Hornby    v.    Cramer,    12    How.  38  j^i    y.  Code.  Civ.  Proc.  §  2391. 

(N.  Y.)   Pr.  490.     Thus,  where  the  39  A   notice  which   describes   one 

act   requires   the    letter    containing  of  the  mortgagors  as  "Julia"  when 

the  notice  to  be  deposited    in    the  her  name  is  "Tofila,"  is  fatally  de- 

postoffice  twenty-eight  days  prior  to  fective.     Zlotoecizski  v.  Smith.   117 

the  time  specified  for  the  sale,  the  Mich.  202,  75  N.  W.  470. 

twenty-eight  days  are  to  be  counted  ^^  Weir  v.  Birdsall.  27  App.  Div. 

from  the  time  of  deposit,  and  not  404,  50  N.  Y.  Supp.  275. 

from  the  time  of  the  post-mark  or  *^  A  mistake   in  the  date  of  the 

the   forwarding  of   the  letter.  mortgage    is    not    fatal.     Brown    v. 

^T  George  v.  Arthur,  2  Hun.   (N.  Burney,   128   Mich.   205.  87   N.   W. 

Y.)   406,  4  T.  &  C.    (N.   Y.)    635.  221. 


1308  MORTGAGE    FORECLOSURES.  [§    928 

foreclose  the  mortgage,  or  what  is  equivalent,  that  a  sale  will 
be  had  by  virtue  of  a  power  contained  in  the  mortgage.^*^  It 
is  believed  that  most  persons  would  readily  perceive  the  pur- 
pose of  the  notice,  even  if  it  were  not  distinctly  stated;  for 
that  reason  it  is  not  necessary  to  state  distinctly  that  the 
mortgage  will  be  foreclosed,  if  notice  of  a  sale  according 
to  the  requirements  of  the  statute  is  given.*^  Words  which 
would  import  a  sale  of  the  mortgage,  instead  of  a  sale  of  the 
land,  if  literally  construed,  will  not  vitiate  the  notice,  if  the 
apparent  meaning  is  that  a  sale  of  the  land  is  intended.** 

The  notice  need  not  state  that  the  subscribers  have  a  lawful 
right  or  authority  to  foreclose ;  *^  and  where  executors  or  ad- 
ministrators seek  to  foreclose  by  advertisement,  it  is  not  neces- 
sary that  their  authority  to  do  so  should  be  set  forth  in  the 
notice.  It  will  be  sufficient  if  they  subscribe  the  notice  as  "ad- 
ministrators" or  as  "executors"  of  the  last  will  and  testament 
of  the  deceased  mortgagee.*^ 

In  those  cases  where  the  sale  of  the  mortgaged  premises  is 
made  under  a  power  contained  in  the  mortgage,  a  notice  of 
foreclosure  sale  is  not  invalidated  by  failure  to  mention  the 
amount  of  the  taxes  on  the  premises,  when,  after  stating  the 
amount  then  claimed  to  be  due  upon  the  mortgage,  it  states 
that  the  premises  will  be  sold  for  such  debt  and  interest  "and 
the  taxes,  if  any,  on  said  premises."  *'  Neither  is  such  a  notice 
insufficient  because  of  such  omission  of  the  words  "will  be 
sold,"  so  that  it  reads  "the  said  mortgaged  premises  at  public 
auction  for  cash,  to  the  highest  bidder."  **  And  in  those  cases 
where  the  deed  of  trust  contains  no  provisions  requiring 
the  successor  of  the  original  trustee  to  recite  in  his  notice 

42  Jiidd  V.  O'Brien,  21  N.  Y.  186.  47  Kirkpatrick  v.  Lewis,  46  Minn. 

« Leet  V.  McMaster,  51  Barb.  146,  48  N.  W.  783,  aff'g  on  rehear- 
(N.  Y.)  236.  ing  47  N.  W.  970. 

'^Judd  V.  O'Brien,  21  N.  Y.  186.  '^^  Nau  v.  Brunette,  79  Wis.  664, 

45  People  ex  rel.  Bridenhecker  v.       48  N.  W.  649. 
Fresco tt,  3  Hun  (N.  Y.)  419. 

*^  People  ex  rel.  Bridenhecker  v. 
Prescott.  3  Hun   (N.  Y.)  419. 


§  930]  STATUTORY  FORECLOSURE.  1309 

of  sale  the  circumstances  which  devolved  the  execution  of 
the  trust  upon  him,  a  misrecital,  in  such  notice,  of  the  ground 
upon  which  his  right  to  act  as  trustee  is  based,  is  immaterial.*^ 

§  929.  Description  of  mortgaged  premises  in  notice. — 

The  description  of  the  mortgaged  premises  in  the  notice  of 
sale  must  conform  substantially  to  that  contained  in  the  mort- 
gage, or  the  sale  will  be  invalid.^"  Thus,  in  a  case  where  the 
mortgage  referred  to  a  map  on  file,  and  stated  that  the  prem- 
ises contained  a  particular  number  of  acres,  and  the  notice 
gave  the  number  of  the  lot,  but  gave  neither  its  metes,  nor 
bounds,  nor  stated  the  quantity  of  land,  and  did  not  refer  to 
the  map  or  show  whether  the  land  was  a  village  lot  or  a  farm, 
it  was  held  that  the  foreclosure  did  not  comply  with  the  statute, 
and  was  void.  In  such  a  case,  a  statement  of  the  quantity  of 
land  and  a  reference  to  the  map  are  substantial  parts  of  the 
description,  and  must  be  given.^^ 

However  a  slight  variance  in  the  description  of  the  quantity 
of  mortgaged  premises  between  the  mortgage  and  the  notice  is 
not  fatal  to  the  validity  of  the  foreclosure,  where  there  is  no 
actual  prejudice  and  it  is  not  uncertain,  obscure,  or  misleading 
as  to  what  the  bidder  will  acquire  by  his  purchase.^* 

§  930.  Description  of  mortgage  in  notice. — The  notice 
of  sale  must  specify  the  names  of  the  mortgagor  and  the 
mortgagee,  and  of  each  assignee  of  the  mortgage.^'     Where 

^^  Irish   V.    Antioch   College,    126  ^'^  Rathbone  v.  Clarke,9  Ahh.  {]<i. 

III.  474,  9  Am.  St.  Rep.  638,  18  N.  Y.)   Pr.  66  n. 

E.  768.  62  Schoch  v.   Birdsall,    48    Minn. 

^^Rathbone  v.  Clarke,  9  Abb.  (N.  441,  51  N.  W.  382.     See  Brown  v. 

Y.)   Pr.  66  n.     See  Chace  v.  Morse  Weniworth,  181  Mass.  49,  62  N.  E. 

as  adm'r.  etc.  189  Mass.  559,  76  N.  984;     Beacon    Hill    Land    Co.     v. 

E.    142;    Yellowly  v.  Beardsley,   76  Bowen  as  adm'r  etc.  33  R.  I.  404, 

Miss.  613,  71  Am.  St.  Rep.  536,  24  82  Atl.  81. 

So.   973.     See   also   People's   Sav-  68  n.  y.  Code  Civ.  Proc.  §  2391. 

ings      Bank      of     Woonsocket     v.  It  is  thought,  where  a  mortgage  has 

Wunderlick,  178  Mass.  453,  86  Am.  been  assigned  as  collateral  security 

St.  Rep.  493,  59  N.  E.  1040.  for  a  debt,  and  the  debt  is  paid  be- 


1310  MORTGAGE    FORECLOSURES.  [§    931 

two  mortgages  are  being  foreclosed,  it  is  believed  that  a  single 
notice  will  be  insufficient,  especially  if  the  descriptions  of  the 
premises  are  not  identical."  The  notice  will  sufficiently  specify 
the  place  where  the  mortgage  is  recorded,  if  it  states  the  clerk's 
book  and  the  date  of  record,  although  the  number  of  the  book 
may  be  erroneously  given. *^ 

It  seems  that  the  omission  of  the  name  of  the  mortgagee 
from  the  notice  ^^  or  a  misstatement  as  to  the  date  of  the  mort- 
gage "  is  not  a  fatal  error,  where  there  is  an  accurate  refer- 
ence to  the  record  of  the  mortgage  in  the  clerk's  office,  and 
no  intention  to  mislead  is  shown ;  but  an  omission  or  a  mistake 
which  tends  to  mislead  will  always  be  fatal,  such  as  using  the 
word  "mortgagee"  for  the  word  "mortgagor,"  "  or  giving 
the  mortgagor  a  different  first  name.*' 

§  931.  Notice  should  state  place  of  sale. — To  be  valid, 
the  notice  should  state  the  place  of  sale.^°  It  has  been  said 
that  a  notice,  stating  that  the  sale  will  take  place  at  the  city 
hall,  but  not  stating  in  what  part  of  the  city  hall,  is  good, 
since  by  usage  the  rotunda  is  the  established  part  of  the  build- 


fore  notice  of  the  sale  is  given,  that  held,  where  there  was  no  book  in 

the  notice  need  not  name  such  as-  the  office  of  so  high  a  number  as 

signee,    he    no    longer    havijig    any  the      one      designated.      Jiidd      v. 

interest     in     such    mortgage.      See  O'Brien,    21    N.    Y.  186,   189.     But 

White  V.  McClellan,  62  Md.  347.  see  Peaslee  v.  Ridgway,  82  Minn. 

^^  Morse  v.  Byam,  55  Mich.  594.  288,  84  N.  W.  1024. 

55/w(fd  V.  O'Brien,  21  N.  Y.  186.  ^^Candee  v.   Burke,   1   Hun    (N. 

A  notice  giving  correctly  the  clerk's  Y.)  546,  4  T.  &  C.  (N.  Y.)  143. 

olifice  and  the  date  of  recording  the  "  Brown    v.    Burney,    128    Mich, 

mortgage,  though  with  an  error  in  205,  87  N.  W.  221. 

the  number  of  the  book,  is  a  sub  58  Abbott   v.    Banfield,  43   N.    H. 

stantial  compliance  with  the  statute.  152. 

The  place  where  the  mortgage  is  re-  ^^  Zlotoecisski  v.  Smith,  117  Mich. 

corded  will  be  sufficiently  indicated  202,  75  i>i.  W.  470. 

by  naming  the  office  and  the  date  of  ^°  Burnet  V.  Denniston,  5  Johns. 

the    record,   and   possibly   by   men-  Ch.  (N.  Y.)  35. 
tioning  the  office  alone.     It  was  so 


932] 


STATUTORY    FORECLOSURE. 


1311 


ing  for  such  sales ;  this  is  also  true  of  a  notice  of  sale  at  the 
Merchants'  Exchange.®^ 

§  932.  Stating  amount  due  in  notice. — As  the  notice  of 
sale  is  required  to  state  the  amount  due  at  the  time  of  the 
first  publication  thereof,  it  follows  that  a  mortgage  given  as 
security  for  unliquidated  damages,  cannot  be  foreclosed  by 
advertisement.^^  For  the  convenience  of  the  parties,  though 
not  required  by  statute,  the  amount  claimed  to  be  due  at 
the  time  of  the  first  publication  of  the  notice,®^  should  be 
given  in  dollars  and  cents;  yet  a  statement  that  it  is  claimed 
that  a  particular  sum  was  due  at  any  designated  day  prior  to 
the  notice,  will  doubtless  be  sufficient.^* 

If  the  advertisement  of  sale  contains  a  false  statement, 
tending  to  deceive  the  public  as  to  the  amount  of  the  incum- 
brances, and  thereby  deters  bidders,  the  sale  will  be  irregular 
and  void.^^  But  this  is  not  true  as  to  a  mistake,  a  correction 
of  which  is  published  with  the  notice,  before  it  can  be  pre- 
sumed to  have  influenced  persons  intending  to  bid ;  as  where, 
by  mistake,  the  notice  of  sale  stated  a  prior  incumbrance  upon 
the  mortgaged  property,  at  twice  its  actual  amount,  and  a  cor- 
rection thereof  was  published  with  the  notice  two  weeks  be- 
fore the  sale.®^ 


^^  Hornby  v.  Cramer,  12  How. 
(N.  Y.)  Pr.  490. 

62  N.  Y.  Code  Civ.  Proc.  §  2391 ; 
Ferguson  v.  Kimball,  3  Barb.  Ch. 
(N.  Y.)  616,  619,  except,  perhaps, 
where  it  contains  within  itself  a 
measure  by  which  to  ascertain  the 
amount  of  damages ;  Jackson  v. 
Turner,  7  Wend.  (N.  Y.)  458.  See 
Mowry  v.  Sanborn,  68  N.  Y.  153. 

63  Stating  in  the  notice  the  amount 
due  on  the  day  before  the  first  pub- 
lication, is  not  fatal.  It  is  sur- 
plusage to  state  that  the  premises 
are  subject  to  a  lease;  and  the 
neglect  to  state  how  long  the  lease 


mentioned  in  a  notice  has  to  run 
will  not  affect  the  sale.  Hubbell  v. 
Sibley,  5  Lans.  (N.  Y.)  51,  aff'd  50 
N.  Y.  468. 

64/MJd  V.  O'Brien,  21  N.  Y.  186, 
189. 

65  Burnet  v.  Denniston,  5  Johns. 
Ch.  (N.  Y.)  35;  Hubbell  v.  Sibley, 
5  Lans.  (N.  Y.)  55.  See  Klock  v. 
Cronkhite,  1  Hill  (N.  Y.)  107; 
Jcncks  V.  Alexander,  11  Paige  Ch. 
(N.  Y.)  619. 

^^  Hubbell  V.  Sibley,  5  Lans.  (N. 
Y.)  51,  aff'd  50  N.  Y.  468.  See 
Mowry  v.  Sanborn,  62  Barb.  (N. 
Y.)  223,  rev'd  on  another  point.  65 


1312  MORTGAGE    FORECLOSURES.  [§    932 

Nor  will  the  sale  be  invalidated  by  a  failure  to  state  the 
exact  amount  due,  where  there  is  no  fraudulent  intent  and  no 
substantial  injury  results  from  such  failure.^''  And  where 
the  amount  alleged  to  be  due  is  greater  than  the  amount 
allowed  by  the  terms  of  the  mortgage,  in  the  absence  of  fraud 
or  any  other  irregularity,  the  mortgagor  will  be  required  to 
do  equity  by  paying  the  amount  actually  due,  or  submit  to  a 
decree  for  the  resale  of  the  premises ;  ^^  for  the  mere  fact  that 
a  larger  amount  is  claimed  in  a  notice  of  a  sale  of  lands  on 
foreclosure  by  advertisement  than  is  actually  due  does  not, 
where  no  actual  injury  or  fraudulent  purpose  is  shown,  render 
the  sale,  and  the  deed  executed  in  pursuance  thereof,  void.^^ 
But  in  those  cases  where  the  mortgagee  becomes  the  pur- 
chaser at  the  sale  of  the  property  for  such  amount,  he  is  liable 
to  the  mortgagor  or  his  assigns  for  the  excess.'" 

The  supreme  court  of  Michigan  have  said,  in  the  case  of 
Emmons  v.  Van  Zee,'^  that  the  insertion  of  an  attorney's 
fee  in  the  sum  for  which  the  land  is  sold  under  a  foreclo- 
sure sale  by  advertisement  does  not  necessarily  render  the 
sale  invalid  in  those  cases  where  the  attorney's  fee  is  claimed 
in  good  faith.  And  the  New  York  court  of  appeals,  in  the 
case  of  Lewis  v.  Duane,'''  say  that  the  foreclosure  by  advertise- 
ment, for  the  full  amount  secured  thereby,  of  a  mortgage 
given  to  indemnify  the  mortgagee  for  existing  and  future  in- 
dorsements and  advances  to  pay  ofif  judgments  against  the 
mortgagor,  is  not  for  an  amount  in  excfess  of  that  due  the 

N.  Y.  581;  Jencks  V.  Alexander,  11  ''^  Fag  an   v.   People's  Sav.    &   L. 

Paige  Ch.  (N.  Y.)  619.  Assoc.  55  Minn.  437,  57  N.  W.  142. 

^"^  See    Way   v.   Dyer,    176   Mass.  See  ante,  §  853. 

448,  57  N.  E.  678.     See  ante,  §  539.  As  to  mortgagee  becoming  pur- 

^^  Htiyck    V.    Graham,    82    Mich.  chaser  at  his  foreclosure  by  adver- 

353,  46  N.  W.  781.  tisement.     See  post,  §  942. 

e^Huyck    V.    Graham,    82    Mich.  7178  Mich.  171,  43  N.  W.  1100. 

353,  46  N.  W.  781 ;  Bowers  v.  Hecht-  ^2  141  n.  Y.  302,  36  N.  E.  322,  57 

man,  45  Minn.  238,  47  N.  W.  792.  N.  Y.  S.  R.  410. 
See    also    Long    v.     Richards,    170 
Mass.  120,  64  Am.  St.  Rep.  281,  48 
N.  E.  1083. 


§  933]  STATUTORY  FORECLOSURE.  1313 

mortgagee,  where  it  is  less  than  the  aggregate  amount  which 
he  has  already  incurred  and  will  certainly  incur  in  the  future 
on  account  of  outstanding  judgments  for  which  he  is  liable. 

§  933.  Stating  amount  where  only  part  of  debt  is  due. — 
Where  a  sale  is  made  under  a  power  contained  in  a  mortgage, 
a  portion  of  which  is  not  due  at  the  time  of  the  first  publi- 
cation, the  notice  must  state  the  sum  due  and  also  the  amount 
to  become  due.'^  And  where  a  sale  is  made  subject  to  future 
installments,  part  of  which  have  been  paid,  without  specifying 
the  amount  of  such  installments,  the  notice  will  be  void,'*  and 
a  sale  under  such  a  notice,  for  a  single  installment,'^  will 
extinguish  the  lien  of  the  mortgagee  on  the  entire  premises.'® 
In  such  a  case,  however,  the  mortgagee  will  be  entitled  to 
retain  out  of  the  proceeds  of  the  sale,  the  sums  due  and  to 
become  due  upon  the  mortgage,  besides  the  costs  and  the 
expenses  of  the  foreclosure." 

§  934.  Statement   in   notice   of   prior   incumbrances. — 

It  is  not  necessary  to  set  forth  in  the  notice  of  sale  incum- 
brances subject  to  which  the  sale  is  to  be  made.  Thus,  the 
unexpired  term  of  a  lease,  subject  to  which  the  premises  are 
to  be  sold,  need  not  be  recited  in  the  notice  of  sale.'®  Where 
unnecessary  matters  are  recited  in  the  notice,  they  will  not 
render  it  defective,  and  the  sale  thereunder  void,  unless  per- 
haps, such  matters  mislead  the  public,  and  thereby  prevent 
persons  from  bidding  who  might  otherwise  have  become  pur- 
chasers.'^   If,  however,  such  matters  are  inserted  in  the  notice 

■^3  N.  Y.  Code  Civ.  Proc.  §  2391.  "^^  Poweshiek  Co.  v.  Dennison.  36 

See  Jencks  v.  Alexander,  11  Paige  Iowa,  244,  14  Am.  Rep.  524. 

Ch.  (N.  Y.)  619,  626.  '7  n.  Y.  Code  Civ.  Proc.  §  2404. 

"^^  Jencks  V.  Alexander,  11   Paige  "^^  Hubbell  v.  Sibley,  5  Lans.   (N. 

Ch.   (N.  Y.)  619,  626,  N.  Y.  Code  Y.)  51. 

Civ.  Proc.  §  2391.  '^  See  also  Pearson  v.  Gooch,  69 

75  Minor  V.  Hill,  58  Ind.   176,  26  N.  H.  208,  40  Atl.  390. 
Am.    Rep.    71.      Compare    Hill    v. 
Minor,  79  Ind.  48. 

Mortg.  Vol.  II.— 83. 


1314  MORTGAGE    FORECLOSURES.  [§    935 

of  sale  by  mistake,  and  are  corrected  before  it  can  be  pre- 
sumed that  persons  entitled  to  bid  would  be  influenced  there- 
by, the  proceedings  will  not  be  prejudiced.*" 

§  935.  Date  of  sale  and  signature  to  notice. — The  date 
of  the  sale  should,  be  correctly  given ;  but  where,  by  mistake, 
an  incorrect  date  is  given,  which  is  obvious  on  inspection  and 
could  not  mislead,  it  will  not  invalidate  the  proceedings;  as 
where,  by  mistake,  1858  was  inserted,  instead  of  1868." 

The  Code  requires  the  notice  to  be  subscribed  by  the  per- 
son entitled  to  execute  the  power  of  sale;*^  where  the  name 
of  the  mortgagee  was  omitted  from  the  body  of  a  notice  of 
sale,  but  was  signed  at  the  bottom  thereof,  it  was  held  to  be 
sufficient.*'  A  notice  signed  by  a  duly  authorized  person  as 
"executor"  has  been  held  to  contain  a  sufficient  statement  of 
his  interest  in  the  mortgage,  and  how  it  was  acquired ;  **  and 
where  the  name  of  the  person  entitled  to  execute  the  power 
of  sale,  distinctly  appears  in  the  body  of  the  notice,  it  may 
be  subscribed  by  his  attorney  or  agent.** 

§  936.  Objections  to  notice  of  sale. — Where  the  notice 
is  irregular  or  defective,  objections  thereto  should  be  promptly 
made.  It  has  been  said,  that  after  the  lapse  of  fifteen  years,  a 
mortgagor,  or  other  party  interested,  cannot  question  the  regu- 
larity of  the  notice  of  sale,  and  that  apparent  deficiencies  will 
be  supplied  by  intendment.** 

A  sale  on  foreclosure  by  advertisement  is  entirely  ex  parte, 
and  legal  objections  thereto  can  be  taken  whenever  the  proceed- 

^^  See    ante,     §    932 ;     Klock    v.  '*  People  ex  rel.  Bridenbecker  v. 

Cronkhite,  1  Hill  (N.  Y.)  107;  Bur-  Prescott,  3  Hun.  (N.  Y.)  419.    See 

net  V.  Denniston,  5  Johns.  Ch.   (N.  N.    Y.    Code    Civ.    Proc.    §§    2388, 

Y.)  35,  42;  Jencks  v.  Alexander,  11  2391. 
Paige  Ch.  (N.  Y.)  619.  85  n.  Y.  Code  Civ.  Proc.  §  2388. 

81  Mowry  v.    Sanborn,  68    N.   Y.  86  Bergen  v.  Bennett,  1  Cai.  Cas. 
153,  reversing  7  Hun   (N.  Y.)  380.  (N.  Y.)  1,  2  Am.  Dec.  281;  Demar- 

82  N.  Y.  Code  Civ.  Proc.  §  2388.       est  v.   Wynkoop,  3  Johns.  Ch.    (N. 
^^Candee  v.   Burke,   1    Hun    (N.       Y.)  129,  8  Am.  Dec.  467. 

Y.)  546,  4  T.  &  C.  (N.  Y.)  143. 


§  937]  STATUTORY  FORECLOSURE.  1315 

ings  are  properly  brought  in  question."  Thus,  if  a  tender  to 
redeem  was  refused  by  a  mortgagee,  a  sale  made  by  him  there- 
after would  be  illegal  and  void,  and  a  fraud  upon  subsequent 
judgment  creditors  and  incumbrancers.** 

§  937.  Postponement  of  sale. — The  New  York  Code  of 
Civil  Procedure  provides,*^  that  "a.  sale  may  be  postponed 
from  time  to  time.  In  that  case,  a  notice  of  the  postpone- 
ment must  be  published,  as  soon  as  practicable  thereafter,  in 
the  newspaper  in  which  the  original  notice  was  published; 
and  the  publication  of  the  original  notice,  and  of  each  notice 
of  postponement,  must  be  continued,  at  least  once  in  each 
week,  until  the  time  to  which  the  sale  is  finally  postponed."  *° 

The  usual  practice  is  for  the  party  conducting  the  sale  to 
attend  at  the  time  and  place  appointed  for  the  sale,  and 
to  give  public  notice  of  the  postponement  by  announcement; 
and  it  is  believed  that  this  practice  should  be  followed,  be- 
cause a  departure  from  the  established  practice  might  be  re- 
garded as  evidence  of  bad  faith.^^ 

If  a  postponement  is  made  at  the  time  and  place  appointed 
for  the  sale,  by  stating  the  adjourned  time  and  place  to  those 
present,  the  subsequent  notice,  to  be  published  until  the  time 
of  sale,  must  conform  to  the  adjournment,  as  thus  announced. 
Thus,  where  the  announcement,  made  at  the  time  and  place 
first  fixed  for  the  sale,  was  of  an  adjournment  to  the  tenth 
of  the  month,  but  the  printed  notice  was,  by  mistake,  to  the 
sixteenth,  a  sale  had  on  the  sixteenth  was  held  void.'* 

^T  Hall  V.   Bartlett,  9   Barb.    (N.  Marcus  v.  Collamore,  168  Mass.  56, 

Y.)    300;    Burnet   v.    Denniston,    5  46  N.  E.  432. 

Johns.  Ch.   (N.  Y.)  35.  9^  Circumstances  tending  to  show 
8*  See  Miller  v.  Fitin,  1  Neb.  254.  fraud  in  the  adjournment  of  a  sale, 
*9  N.  Y.  Code  Civ.  Proc.  §  2392.  previously    advertised    on    proceed- 
s'' Westgate   v.   Handlin,   7   How.  ings    which   were   abandoned,    have 
(N.  Y.)    Pr.  372;  Sayles  v.  Smith,  been  held  not  to  amount  to   fraud 
12  Wend.  (N.  Y.)  57,  27  Am.  Dec.  in  the  sale.     See  Leet  v.  McM aster, 
117.     See  Jachson  v.  Clark,  7  Johns  51  Barb.  (N.  Y.)  236. 
(N.  Y.)  217.  ^^  Miller  v.  Hull,  4  Den.  (N.  Y.) 
For  practice  m  Massachusetts,  see  104. 


1316  MORTGAGE    FORECLOSURES.  [§    938 

Where  a  mortgagee  published  a  notice  under  his  advertise- 
ment of  sale,  that  the  sale  was  to  be  adjourned,  but  neglected 
to  post  a  notice  of  such  adjournment,  the  court  held  that  he 
was  bound  by  his  adjournment,  and  that  his  sale  made  on  the 
original  notice,  disregarding  the  adjournment,  was  irregular 
and  void.^^  It  has  been  held  that  where  the  notice  of  sale  was 
for  Sunday,  the  mortgagee  might,  before  the  day  of  sale,  post- 
pone it  to  another  day  and  make  a  valid  sale  under  the  notice.^* 

The  supreme  judicial  court  of  Massachusetts,  in  the  case  of 
Clark  V.  Simmons,^^  say  that  in  those  cases  where,  at  an 
auction  sale  under  a  power  contained  in  a  mortgage,  the  only 
person  present  who  will  buy  at  all  will  offer  only  a  small  part 
of  the  well-known  value  of  the  property,  the  conditions  which 
are  impliedly  essential  to  the  execution  of  the  power  are  want- 
ing, and  it  is  the  duty  of  the  mortgagee  either  to  abandon  his 
attempt  to  sell,  or  to  adjourn  the  sale  until  he  can  obtain  the 
presence  of  bidders.  But  in  those  cases  where  the  property  has 
been  properly  advertised,  it  is  not  the  duty  of  the  person  con- 
ducting the  sale  under  the  power  to  postpone  it  to  another  day, 
where  there  are  a  dozen  persons  present  and  several  bids  are 
made,  and  the  sale  realizes  more  than  the  amount  of  the  mort- 
gage and  the  expenses  of  sale.®^ 

§  938.  Time  and  place  of  sale. — The  New  York  Code 
of  Civil  Procedure  provides,^'''  that  the  sale  must  be  made  "at 
public  auction,  in  the  daytime,  on  a  day  other  than  Sunday  or 
a   public   holiday,®*   in  the   county   in   which  the   mortgaged 

^^  Jackson  V.  Clark,  7  Johns.  (N.  and  place  of  sale  see  Melsheimer  v. 

Y.)  217.  McNight,  92  Miss.  386,  46  So.  827; 

9*  Westgate  v.  Handlin,   7   How.  Davis   v.    O'Connell,  92   Miss.   348, 

(N.  Y.)  Pr.  372.  47  So.  672. 

95  ISO  Mass.  357.  23  N.  E.   108.  98  See    Mutual    Fire    Ins.    Co.    v. 

^^  Stevenson   v.   Hano.   148   Mass.  Barker,  17  App.  D.  C.  205. 

616,  20  N.  E.  200.     See  also  Shaw  Selling  on  Sunday  is  not  unlaw- 

V.  Smith,  as  assignee,  etc.  107  Md.  ful.  for  selling  land  under  a  statu- 

523,  69  Atl.  116.  tory    foreclosure    is    not    a    judicial 

9' N.  Y.  Code  Civ.   Proc.  §  2393.  proceeding.      Sayles    v.    Smith,    12 

For   Mississippi    rule  as   to   time  Wend.    (N.    Y.)    57,  27   Am.    Dec. 


§  939]  STATUTORY  FORECLOSURE.  1317 

property,  or  a  part  thereof,  is  situated;^'  except  that,  where 
the  mortgage  is  to  the  people  of  the  state,  the  sale  may  be 
made  at  the  Capitol."  The  mortgagee's  deed  will  not  convey 
a  title,  unless  the  sale  was  held  at  public  auction  pursuant  to 
the  statutory  notice,  even  though  the  mortgage  may  contain 
a  power  of  sale,  expressly  authorizing  the  mortgagee,  on  de- 
fault, to  sell  the  premises  at  private  sale.^  Where  the  instru- 
ment itself  fixes  a  place  of  sale,  the  sale  must  be  made  at 
that  place. ^ 

And  a  sale  of  property  under  a  power  in  a  deed  of  trust 
requiring  the  sale  to  be  made  at  the  county-seat  of  a  designated 
county  is  void  where  it  is  made  at  a  place  which  never  was 
such  county-seat.^  The  place  of  sale  is  within  the  sound  dis- 
cretion of  the  trustee  in  a  trust  deed,  where  the  deed  contains 
no  stipulation  in  respect  thereto.*  Such  discretion,  however, 
should  be  exercised  fairly  and  prudently.* 

§  939.  By  whom  sale  to  be  conducted. — A  sale  is 
usually  conducted  by  the  mortgagee,  but  if  it  is  made  to  appear 
likely  to  the  court  that  he  will  exercise  his  power  in  a  harsh, 

117.      Where    the    day    first    set    is  App.)    27  S.  W.  795,  aff'd  in  part 

Sunday,  a  postponement  from  that  and  rev'd  in  part  in  30  S.  W.  539, 

day   will   be   regular.      Westgate  v.  and  rev'd  in  31  S.  W.  185. 

Handlin,  7  How.   (N.  Y.)    Pr.  372.  ^A  sale  under  a  trust   deed   for 

^9  See  Kerr  v.  Galloway,  94  Tex.  $12,000,  not  prescribing  the  place  of 

641,  64  S.  W.  858.     See  also  Bcitel  sale,   of   land  claimed  to  be  worth 

V.  Dobbin,  44   S.   W.  299    (Tex.)  ;  $25,000,    should    be    held    upon    the 

Chandler  v.   Peters,  44   S.   W.  867  premises,  where  the  debtor  requests 

(Tex.)  it  and  claims  that  it  is  not  necessary 

^Lawrence  v.  Fanners'  Loan  and  to  sell  the  whole,  and  that  the  ap- 

Trust  Co.  13  N.  Y.  200.  pearance  and  situation  of  the  prop- 

^  Fry  V.   Old   Dominion    Building  erty  will   increase  the  prospects  of 

&■  Loan  Ass'c.    of  Richmond,   Va.  a  good  sale  when  it  is  made  in  view 

48  W.  Va.  61,  35  S.  E.  842.  of  the  bidders.    Morriss  v.  Virginia 

The  same  applies  to  the  time  of  State  Ins.  Co.  90  Va.  370,  18  S.  E. 

sale.     Garrett  v.  Crawford,  128  Ga.  843. 

519,  119  Am.  St.  Rep.  398,  57  S.  E.  ^Morriss   v.    Virginia   State   Ins. 

792.  Co.  90  Va.  370,  18  S.  E.  843. 

^  Durrell   v.    Farwell    (Tex.    Civ. 


1318 


MORTGAGE    FORECLOSURES. 


[§    940 


oppressive,  or  improper  manner,  the  court  will  associate  a 
referee  with  him  to  see  that  the  sale  is  properly  conducted,  and 
that  only  so  much  of  the  mortgaged  premises  is  sold  as  will 
be  sufficient  to  satisfy  the  mortgage  debt.^ 

Where  the  sale  is  conducted  by  the  mortgagee,  he  is  re- 
garded, in  equity,  as  a  trustee,  and  is  bound  to  conduct  the 
proceedings  in  a  fair  and  just  manner,  and  in  good  faith,'  and 
is  governed  by  substantially  the  same  rules  as  control  a  sale 
made  by  a  referee  in  a  foreclosure  by  action.' 

§  940.  Sale  in  parcels. — The  New  York  Code  of  Civil 
Procedure  requires,^  that  "if  the  property  consists  of  two  or 
more  distinct  farms,  tracts,  or  lots,  they  must  be  sold  separ- 
ately; and  as  many  only  of  the  distinct  farms,  tracts,  or  lots, 
shall  be  sold,  as  it  is  necessary  to  sell,  in  order  to  satisfy  the 
amount  due  at  the  time  of  the  sale,  and  the  costs  and  expenses 
allowed  by  law.  But  where  two  or  more  buildings  are  situated 
upon  the  same  city  lot,  and  access  to  one  is  obtained  through 
the  other,  they  must  be  sold  together."  In  some  states  the 
parties  may  waive  the  provisions  of  the  statute  requiring  sale 
in  parcels.^" 

If  the  land  consists  of  distinct  farms,  tracts,  or  lots,  and 
they  are  sold  together,  the  sale  will  be  voidable, ^^  at  least,  if 
not  absolutely  void;"  but  where  the  premises  do  not  consist 


6  VanBergen  v.  Demarest,  4 
Johns.  Ch.  (N.  Y.)  37. 

"^ Soule  V.  Ludlozv,  3  Hun  (N.  Y.) 
503,  6  T.  &  C.  (N.  Y.)  24.  See 
Ellsworth  V.  Lockwood,  42  N.  Y. 
89. 

'  See  ante,  chap.  xxv. ;  also  Soule 
V.  Ludlow,  3  Hun  (N.  Y.)  503,  6 
T.  &  C.  (N.  Y.)  24. 

9  N.  Y.  Code  Civ.  Proc.  §  2393. 

^^  Brown  v.  British  &  American 
Mortgage  Co.  86  Miss.  388,  38  So. 
312. 


^^  Phelps  V.  Western  Realty  Co. 
89  Minn.  319,  94  N.  W.  1085. 

The  sale  will  be  voidable  where 
it  was  the  result  of  fraud,  or  where 
prejudice  resulted  therefrom  to  the 
mortgagor  or  owner  of  the  equity 
of  redemption.  Willard  V.  Finne- 
gan,  42  Minn.  476,  44  N.  W.  985, 
8  L.R.A.  50. 

^^  IV ells  V.  Wells,  47  Barb.  (N. 
Y.)  416. 


§  940]  STATUTORY  FORECLOSURE.  1319 

of  distinct  farms,  parcels,  or  lots,  they  need  not  be  sold 
separately."  It  is  believed  that  where  lands  are  mortgaged 
as  one  undivided  lot,  or  parcel,  and  are  subsequently  sub- 
divided, the  mortgagee  is  not  bound  to  sell  them  in  parcels.^* 
It  has  been  held  that  land  may  be  sold  in  parcels  to  separate 
purchasers  at  one  sale,  under  a  power  in  the  mortgage,  if  the 
sale  is  made  in  such  a  manner  as  to  obtain  the  most  money  for 
the  land." 

It  seems,  however,  that  a  court  of  equity  can  give  relief 
against  a  sale  of  the  whole  mortgaged  property  in  one  parcel, 
even  where  mortgaged  as  one  tract,  if  a  party  standing  in  the 
position  of  a  junior  mortgagee,  or  as  owner  of  the  property, 
requests  a  sale  in  parcels,  and  offers  in  good  faith  to  bid  the 
amount  of  the  mortgage,  with  the  costs  and  expenses  of  the 
sale."  Where  the  parcels  are  so  situated  that  they  can  be 
conveniently  sold  and  conveyed  separately,  the  general  rule 
governing  a  sale  in  parcels  under  a  decree  and  order  of  sale,^' 
will  govern  a  sale  in  a  foreclosure  by  advertisement. 

While  a  mortgagee  is  not  bound  by  the  notice  of  sale  to  sell 
the  mortgaged  premises  in  parcels  in  the  absence  of  a  request 
as  above  stated,  unless  they  are  described  in  parcels  in  the 
mortgage,"  yet  he  may  do  so,  where  the  premises  are  so 
situated  that  he  can  sell  them  to  better  advantage ;  "  and  he 
may  also  reserve  certain  rights  for  the  benefit  of  the  owner  of 

^^  Anderson  v.  Austin,  34   Barb.  "^^  Ellsworth  v.  Lockwood,  42  N. 

(N.    Y.)    319;    Bunce   v.    Reed,    16  Y.  89,  aff'd  9  Hun  (N.  Y.)  548. 

Barb.   (N.  Y.)  347,  350;  Holden  v.  i^  See  ante,  chap,  xxiii. 

Gilbert,  7   Paige  Ch.    (N.  Y.)    211.  ^'^  Sherman   v.    Willett,  42   N.    Y. 

^^ Lamerson   v.   Marvin,   8    Barb.  146,    150;    Griswold   v.    Fowler,   24 

(N.  Y.)   9;   followed  in  Ellstcorfh  Barb.    (N.    Y.)    135;    Lamerson   v. 

V.  Lockwood,  9  Hun  (N.  Y.)  548;  Marvin.  8  Barb.   (N.  Y.)  9. 

Hubbell  V.  Sibley,  5  Lans.   (N.  Y.)  ^^  Sherman  v.    IVillett,  42   N.   Y. 

51.    See  Lazarus  v.  Caesar.  157  Mo.  146,    151.      See    also    Markwell    v. 

199.  57  S.  W.  751.    See  ante.  %  574.  Markwell,   157  Mo.  326,  57  S.  W. 

577  and  chap,  xxiii.  1078. 

^5  Holmes  v.  Turners  Falls  Lum- 
ber Co.  150  Mass.  535,  23  N.  E.  305, 
6  L.R.A.  283. 


1320  MORTGAGE    FORECLOSURES.  [§    941 

the  equity  of  redemption,  where  the  property  is  amply  suffi- 
cient to  pay  the  mortgage  debt.^° 

Where  a  sale  is  made  by  a  trustee  under  a  trust  deed  author- 
izing him  to  "sell  and  dispose  of  said  premises,"  he  has  a  dis- 
cretion to  sell  the  land  entire  or  in  parcels ;  and  his  failure 
to  advertise  the  sale  as  in  parcels  will  not  make  it  invalid.^^ 

§  941.  Terms  of  sale. — The  Code  does  not  require  that 
the  published  notice  shall  contain  the  terms  of  sale,^^  while 
it  is  the  practice  to  conform  the  terms  of  a  sale  to  those 
made  under  decrees  of  foreclosure,  by  stating  in  writing  the 
conditions  upon  which  the  purchaser  is  to  pay  for  and  receive 
the  title,  yet  the  mortgagor,  or  those  claiming  under  him.  can- 
not object  to  the  sale  on  the  ground  that  the  terms  thereof 
were  not  given  in  the  notice  of  foreclosure,  nor  in  the  affidavits 
of  sale,  and  that  the  owner  of  the  equity  of  redemption  had 
no  knowledge  or  notice  of  the  terms  of  sale,  and  had  never 
ratified  them.^^ 

In  a  sale  on  foreclosure  by  advertisement  under  a  power 
in  the  mortgage,  the  payment  of  the  purchase  money  is  a 
matter  between  the  mortgagee  and  the  purchaser;  the  mort- 
gagor having  no  other  interest  than  to  obtain  the  credit  and 
benefit  of  the  amount  bid.^*  And  where  he  gets  that,  neitlier 
he  nor  any  other  person  who  was  not  a  beneficiary  can  com- 
plain because  the  payment  was  not  made  in  cash.^* 

The  sale  may  be  made  for  cash  ^®  or  upon  time,  as  to  a  part 
or  the  whole  of  the  amount,  in  the  discretion  of  the  mort- 
gagee, and  where  time  is  given  for  the  payment  of  the  whole, 

20  Sherman   v.    IVillett,  42   N.   Y.  'i^  Jones  v.  Hagler,  95  Ala.  529,  10 

146.  So.  345.    See  also  Marlin  v.  Sazvyer, 

^^Loieland  v.  Clark,  11  Colo.  265,  57  S.  W.  416  (Tenn.) 

18  Pac.  544.  ^^  Payment   of   about   7   per   cent 

22  See  also  Nichols  v.  Hoxie,  as  of  bid  at  time  of  sale  and  the  bal- 

tnistee,  33  R.  I.  77,  80  Atl.   186.  ance  several  days  later  when  deed 

^  Story  V.  Hamilton,  20  Hun  (N.  was  made  is  sale  for  cash.    Cliarles 

Y.)  133,  aff'd  86  N.  Y.  428.  Green  Real  Estate  Co.  v.  St.  Louis 

^^Mewburn  v.  Bass,  82  Ala.  622.  Mutual  House  Building  Co.  No.  3, 

2  So.  520.  196  Mo.  358,  93  S.  W.  1111. 


§  942]  STATUTORY  FORECLOSURE.  1321 

or  a  portion  of  the  purchase  money,  the  mortgagee  may  deter- 
mine what  security  he  will  require.^'  Where  the  sale  is  made 
for  cash,  a  reasonable  deposit  may  be  required,  although  the 
advertisement  may  not  specify  such  terms,  nor  state  that  the 
terms  would  be  made  known  on  the  day  of  the  sale.*^'  Where 
a  sale  is  made  for  cash,  payment  may  be  made  by  a  check;  ^' 
or,  by  discharging  a  debt  due  from  the  mortgagee  to  the  pur- 
chaser.^" 

Upon  a  sale  under  the  foreclosure  of  a  second  mortgage 
by  advertisement,  it  is  proper  for  the  mortgagee  to  make  the 
sale  subject  to  the  prior  mortgage ;  '^  or  he  may  advertise  and 
sell  the  property  free  and  clear  of  all  incumbrances,  if  the 
prior  mortgage  is  due,  and  pay  it  off  out  of  the  proceeds  of 
the  sale. 

§  942.  Mortgagee  may  become  purchaser. — The  New 

York  Code  provides,^^  that  "the  mortgagee,  or  his  assignee,  or 
the  legal  representative  of  either,  may,  fairly  and  in  good 
faith,  purchase  the  mortgaged  property,  or  any  part  thereof, 
at  the  sale."  ^^  The  sale  may  be  made  by  the  mortgagee,  or 
the  owner  of  the  mortgage,  and  he  may  himself  become  the 
purchaser  and  make  the  affidavit  which  stands  in  the  place  of  a 
deed.'^ 

It  has  been  held,  that  even  without  the  above  statutory 
provision,  the  mortgagee,  or  his  assignee,  or  the  legal  repre- 

27  Cox   V.    Wheeler,   7   Paige   Ch.  32  n.  Y.  Code  Civ.  Proc.  §  2394. 

(N.  Y.)  248,  251;  Whitfield  v.  Rid-  ^^Moivry   v.    Sanborn,   68   N.   Y. 

die.  78  Ala.  99.  160;  Hollingsworth  v.  Spalding,  54 

28Fo/>^    V.    Biirrage,    115    Mass.  N.  Y .  6Z6;  Hubbell  v.  Sibley,  SQ  ^. 

282;   Model  House  Assoc,   v.  Bos-  Y.  468,  afif'g  5  Lans.    (N.  Y.)   51; 

ton,    114    Mass.    133;    Gooddale    v.  Jackson  v.  C olden,  4  Cow.  (N.  Y.) 

Wheeler,  11  N.  H.  424.  266;    Valentine  v.  Belden,  20  Hun 

^^  McConneaughey    v.    Bogardus,  (N.    Y.)    537;    Cox  v.    Wheeler,   7 

106  III.  321.  Paige  Ch.   (N.  Y.)   248.     See  ante, 

^0  Cooper  V.  Hornsby,  71  Ala.  62;  §  320. 

Tartt  V.   Clayton,   109  III.   579.  ^^Hubbcll  v.  Sibley,  5  Lans.    (N. 

^^  Story   V.    Hamilton.   86    N.    Y.  Y.)  51,  aff'd  50  N.  Y.  468. 
428,  aff'g  20  Hun  (N.  Y.)    133. 


1322  MORTGAGE    FORECLOSURES.  [§    942 

sentative  of  either,  would  have  a  right  to  purchase  the 
premises ;  '^  and  may  come  into  equity  to  have  his  sale  con- 
firmed and  his  title  perfected,  and  in  his  bill  may  offer  to  have 
the  land  resold  at  the  option  of  the  mortgagor  ;^^  such  bill 
will  not  be  dismissed  for  want  of  equity.^''  The  better  opin- 
ion, however,  seems  to  be  that  a  court  of  equity  will  not 
allow  the  person  holding  a  mortgage  containing  a  power  of 
sale  to  become  the  purchaser  at  a  sale  made  thereunder,  unless 
he  is  expressly  authorized  so  to  purchase,  by  the  terms  of  the 
mortgage.^' 

But  where  the  mortgage  contains  a  provision  allowing  the 
mortgagee  to  become  the  purchaser,  he  may  make  the  deed 
in  his  own  name,  directly  to  himself.^^  Such  a  purchase,  made 
by  the  mortgagee  for  his  sole  benefit,  is  valid,  and  will  effect- 
ually foreclose  the  entire  equity  of  redemption,  if  he  faith- 
fully discharges,  in  all  respects,  the  duties  imposed  upon  him 
as  donee  of  the  power.*" 

If  a  mortgagee  purchases  on  a  sale  for  an  installment  due, 
his  mortgage  will  be  merged;  but  it  seems  that  if  a  third  per- 
son purchases,  the  mortgagor,  on  being  compelled  by  suit  on 
the  bond  to  pay  the  balance  of  the  debt,  is  entitled  to  an  as- 

^^  Elliott  V.   Wood,  53  Barb.   (N.  679;  Rich  v.  Morisey,  as  ex'r,  etc. 

S:.)  285,  aff'd  45  N.  Y.  71;  Lewis  149  N.  C.  11,  62  S.  E.  762;  Payton 

V.  Duane,  69  Hun   (N.  Y.)   28,  23  v.  McPhaul,  128  Ga.  510,  58  S.  E. 

N.   Y.   Supp.  433,  52  N.  Y.   S.   R.  50;   Stark  v.   Love,   128   Mo.   App. 

818.  24,  106  S.  W.  87. 

As  to  purchase  by  mortgagee  on  3^  Wilson  v.  Troup,  7  Johns.  Ch. 

sale   in    foreclosure   by   action,    see  (N.  Y.)  25,  2  Cow.  (N.  Y.)  195,  14 

full  discussion,  o«;^,  §  610,  ^f  j^g.  Am.    Dec.   458;   Hall   v.   Bliss,    118 

36  0rr  V.  Blackwell,  93  Ala.  212,  Mass.  554,  558,  19  Am.  Rep.  476, 
8  So.  413.  480;  Dexter  v.  Shepard,  117  Mass. 

37  McHan  v.  Ordway,  82  Ala.  463,  480. 

2  So.  276.  ^°  See  Wilson  v.  Troup,  7  Johns. 

38  Ha//  V.  Bliss,  118  Mass.  554,  Ch.  (N.  Y.)  25,  2  Cow.  (N.  Y. ) 
558,  19  Am.  Rep.  476,  480 ;  Dyer  v.  195,  14  Am.  Dec.  458 ;  Hall  v.  Bliss. 
S hurtle ff,  112  Mass.  165,  17  Am.  118  Mass.  554,  558,  19  Am.  Rep. 
Rep.  77;  Downes  v.  Grazebrock,  3  476,  480;  Dexter  v.  Shepard,  117 
Meriv.  200.     But  see  Dunn  v.  Oet-  Mass.  480. 

tinger  Bros.  148  N.  C.  276,  61  S.  E. 


§  943]  STATUTORY  FORECLOSURE.  1323 

signment  of  the  mortgage  to  enable  him  to  secure  repayment 
of  the  debt  out  of  the  land." 

The  payment  of  a  mortgage  extinguishes  the  power  of  sale 
under  it;  if  a  statutory  foreclosure  thereof  is  afterwards  made 
for  the  benefit  of  an  assignee  of  the  mortgage,  and  he  bids 
in  the  property,  he  will  acquire  no  title,  because  one  who  has 
no  power  to  sell  is  not  a  purchaser  in  good  faith  at  his  own 
sale.*^  Whether  any  person  can  acquire  a  good  title  at  such 
a  sale,  is  questionable." 

§  943.  Setting  sale  aside. — The  proceedings  in  a  fore- 
closure by  advertisement  may  be  set  aside  for  fraud,**  mis- 
take, unfairness,  or  bad  faith,  under  the  same  circumstances 
and  in  the  same  cases,  in  which  a  sale  would  be  set  aside  in 
a  foreclosure  by  an  equitable  action.*^  Any  person,  whose 
interests  are  injuriously  affected  by  the  sale,  may  apply  to 
have  it  set  aside;  but  on  such  an  application,  a  bona  fide  pur- 
chaser will  be  protected.*^  To  entitle  a  person  to  protection 
by  the  court  as  a  bona  fide  purchaser,  it  must  be  made  clearly 
to  appear  that  the  purchase  was  made  in  good  faith,  and  that 
the  consideration  was  paid,  before  notice  of  defects  in  the 
title,  or  of  irregularities  in  the  sale,  was  received." 

On  an  application  to  have  a  sale  set  aside  as  illegal  and 
fraudulent,  the  purchaser  at  the  sale,  as  well  as  all  persons 
claiming  rights  under  him,  must  be  made  parties  to  the  pro- 

^'^Cox   V.    W heeler,  7    Paige   Ch.  *^  Soule   v.   Ludlow,   3   Hun    (N. 

(N.  Y.)  248.  Y.)    503,  6  T.   &   C.    (N.   Y.)    24; 

*2  Warner   v.    Blakcman,   4   Abb.  Hubhell  v.  Sibley,  5  Lans.   (N.  Y.) 

App.    Dec.    (N.    Y.)    530,   4   Keyes  51;  Clevinger  v.  Ross,  109  111.  349. 

(N.  Y.)  487,  aff'g  36  Barb.  (N.  Y.)  See   Carr  v.   Graham,   128  Ga.  622, 

501;  Cameron  v.  Irwin,  5  Hill   (N.  57  S.  E.  875.     See  ante,  chap.  xvi. 

Y.)  272.  46  Warner  v.  Blakeman,  36  Barb. 

^^  Warner   v.    Blakcman,   4   Abb.  (N.  Y.)  501.  aff'g  4  Keyes  (x\.  Y.) 

App.  Dec.  (N.  Y.)  530,  4  Keyes  (N.  487. 

Y.)  487.  ^^Grover   v.    Hale,    107    111.    638; 

^'^  Herring  \.  Suiting,  mW\ss..2?>Z,  Redden     v.     Miller.     95     111.     336; 

38  So.  235.     See  Davis  v.  Keen,  142  Brown  v.  Welch,  18  III.  343,  68  Am. 

N.  C.  496,  55  S.  E.  359.  Dec.  549. 


1324 


MORTGAGE    FORECLOSURES, 


[§  944 


ceeding."  And  where  a  sale  is  set  aside  on  such  appHcation, 
it  will  have  the  effect  of  re-instating  and  preserving  unim- 
paired, the  lien  of  the  mortgage.*^  In  such  a  case,  the  pur- 
chaser will  stand  as  the  assignee  of  the  mortgagee,  and  will 
be  vested  with  all  of  his  ri5,-hts.^° 

§  944.  Grounds  for  setting  sale  aside. — Mere  inade- 
quacy of  price  is  not  of  itself  a  ground  for  setting  aside  a 
sale,  made  pursuant  to  a  power  contained  in  a  mortgage,^^ 
unless  the  inadequacy  is  so  gross  as  to  amount  to  evidence 
of  fraud  against  the  debtor's  rights. ^^  An  application  for 
setting  aside  a  sale,  made  pursuant  to  a  power,  is  always 
addressed  to  the  sound  discretion  of  the  court,  the  same  as 
an  application  to  set  aside  a  sale  "made  pursuant  to  a  decree 
in  a  foreclosure  by  action;  *^  and  the  application  will  be  denied, 
if  the  party  applying  has  been  guilty  of  laches.^* 


*8  See  Candee  v.  Burke,  1  Hun 
(N.  Y.)  546,  4  T.  &  C.  (N.  Y.)  143 ; 
Marvel  v.  Cobb,  200  Mass.  293,  86 
N.  E.  360. 

^^Stackpole  v.  Robbins,  47  Barb. 
(N.  Y.)  212;  Lash  v.  McCormick, 
17  Minn.  407. 

^^  Jackson  v.  Bowcn,  7  Cow.  (N. 
Y.)  13;  Vroom  v.  Ditmas,  4  Paige 
Ch.  (N.  Y.)  526. 

^'^  Monroe  Bros.  &  Co.  v.  Fucht- 
ler  &  Kern,  121  N.  C.  101,  28  S. 
E.  63;  Markwell  v.  Markwell,  157 
Mo.  326,  57  S.  W.  1078;  Keith  v. 
Browning,  139  Mo.  190,  40  S.  W. 
764;  Stevenson  v.  Dana,  166  Mass. 
163,  44  N.  E.  128;  Washburn  v.  Wil- 
liams. 10  Colo.  App.  153,  50  Pac. 
223 ;  Lathrop  v.  Tracy.  24  Colo.  382, 
65  Am.  St.  Rep.  229,  51  Pac.  486; 
Weybiirn  v.  Watkins,  90  Miss.  728, 
44  So.  145 ;  Stockwell  v.  Barnum,  7 
Cal.  App.  413,  43  Pac.  1053;  Grove 
V.  Great  Northern  Loan  Co.  17  N. 
D.  352,   138  Am.   St.  Rep.  707,   116 


N.  W.  345 ;  Turansky  v.  Weinberg, 
211  Mass.  324,  97  N.  E.  755.  See 
a)itc,  §  640,  also  Laclede  Bank  v. 
Kcelcr,  109  111.  385;  Cleaver  v. 
Green,  107  111.  67;  Atkinson  v. 
Washington  &  Jefferson  College,  54 
W.  Va.  32,  46  S.  E.  253. 

^^  Magnusson  v.  Williams,  111  111. 
450;  Beacon  Hill  Land  Co.  v. 
Bowcn,  as  adm'r,  etc.  Zi  R.  I.  404, 
82  Atl.  81;  Shaw  v.  Smith,  as 
assignee,  etc.  107  Md.  523,  69  Atl. 
116;  Davis  v.  Keen,  142  N.  C.  496, 
55  S.  E.  359;  Daggett  Hardware  Co. 
V.  Brownlee,  186  Mo.  621,  85  S.  W. 
545.  See  Summers  v.  Crofts.  145 
Ky.  456,  140  S.  W.  684.  See  also 
Fenton  v.  Bell,  53  S.  W.  984 
(Tenn.) 

S3  See  ante,  §  619. 

^^Dcpciv  V.  Depew,  46  How.  (N. 
Y.)  Pr.  441;  Northwestern  Mort- 
gage Trust  Co.  V.  Bradley.  9  S.  D. 
495,  70  N.  W.  648;  Quirk  v.  Liebcrt, 
12  App.  D.  C.  394.     See  Marvcy  v. 


§    944]  STATUTORY    FORECLOSURE.  1325 

It  is  no  ground  for  setting  a  sale  aside  that  the  mortgagee 
refused,  at  the  request  of  the  owner  of  the  premises,  who  had 
assumed  the  payment  of  the  mortgage,  to  sell  a  part  of  the 
tract  first,  if  such  part  did  not  correspond  to  any  prior 
known  division,  and  no  description  thereof  was  suggested  at 
the  time  by  which  a  conveyance  could  be  made.^* 

If  a  mortgagee  sells  the  property  after  the  debt  has  been 
satisfied,  he  thereby  offends  the  equitable  rights  of  the  mort- 
gagor which  a  court  of  equity  will  intervene  to  protect,  by 
vacating  the  sale.®^  In  Curtis  v.  Moore,"  the  court  say,  "if 
the  debt  secured  by  the  trust  was  fully  paid  before  the  fore- 
closure, the  trustee's  deed  conveyed  no  title,  for  the  power  to 
sell  was  extinguished  as  between  the  mortgagor  and  mort- 
gagee. But  as  to  the  purchaser  at  the  trustee's  sale,  in  good 
faith  and  without  notice,  the  deed  passed  a  good  title." 

The  supreme  court  of  Michigan  in  the  case  of  Dohm  v. 
Haskin,*®  say  that  where  notice  given  by  a  mortgagee  at  a 
sale  by  advertisement  under  a  mortgage  upon  his  co-tenant's 
interest  in  a  will,  that  he  should  foreclose  a  chattel  mortgage 
upon  such  interest  in  the  machinery  against  any  purchaser,  is 
sufficient  to  invalidate  the  sale,  although  the  co-tenant  knew 
that  it  was  for  the  same  debt  as  the  real-estate  mortgage.  And 
any  unfairness  and  want  of  good  faith  on  the  part  of  a  mort- 
gagee who  purchases  the  mortgaged  property  at  such  a  sale 

Cobb,  200  Mass.  293,  86  N.  E.  360;  ^^  Ellsworth  v.  Lockwood,  9  Hun 

Southey  v.  Mclntire,  7  App.  D.  C.  (N.  Y.)   547.     It  was  held  in  New 

447 ;  Higbee  v.  Daeley,  15  N.  D.  339,  York,  prior  to  the  revised  statutes, 

109   N.  W.  318;   Clary  v.  Schaack,  that  the  omission  to  record  a  power 

253  111.  471,  97  N.  E.  1070.    See  also  of  sale  before  a  conveyance  did  not 

Baker  v.  Cunningham,  162  Mo.  134,  vitiate  the  sale.    Jackson  v.  Colden, 

85  Am.  St.  Rep.  490,  62  S.  W.  445 ;  4    Cow.    (N.    Y.)    266;    Wilson    v. 

Woodruff  V.   Adair,    131    Ala.   530.  Troup,  2  Cow.  (N.  Y.)  195.  14  Am. 

32    So.    515;    Mason    v.    American  Dec.  458. 

Mortgage  Co.  of  Edinburgh.  Scot-  ^^  Liddell   &   Co.   v.   Carson.    122 

land,  124  Ala.  347.  26  So.  900;  Pitts  Ala.  518.  26  So.  133. 

V.  American  Freehold  Land  Mart-  "  162  Mo.  442.  63  S.  W.  80. 

gage  Co.   of  London,  Limited,   157  "88  Mich.  144,  50  N.  W.  108. 
Ala.  56,  47  So.  242. 


1326  MORTGAGE    FORECLOSURES.  [§    944 

will  invalidate  the  sale,  although  he  keeps  within  the  letter 
of  the  statute. ^^ 

A  sale  on  foreclosure  by  advertisement  will  not  be  set  aside 
because  of  the  non-observance  of  a  custom  among  auctioneers 
to  place  notices  upon  doors  or  windows  of  houses  for  sale, 
stating  the  time  and  place  of  sale.®"  Neither  will  a  sale  made 
under  a  power  in  the  mortgage,  in  the  absence  of  the 
mortgagee,  without  written  authority  to  the  auctioneer,  who 
became  purchaser  thereof,  be  set  aside  on  these  facts  alone 
after  nine  years."  And  it  has  been  held  the  fact  that  a 
notice  of  a  trustee's  sale  under  a  deed  of  trust,  which  states 
specifically  the  locality  of  the  property  as  to  the  section  and 
subdivision  thereof  and  its  general  metes  and  bounds,  except- 
ing portions  thereof  in  such  a  way  as  not  to  show  how  much 
is  actually  to  be  sold,  is  not  ground  for  setting  aside  the  deed 
under  the  sale,  unless  resultant  prejudice  to  the  debtor  there- 
from is  affirmatively  shown. ®^ 

The  supreme  judicial  court  of  Massachusetts,  in  the  case 
of  Stevenson  v.  Hano,®^  hold  that  a  sale  under  a  power  in  a 
mortgage  will  not  be  set  aside  because  of  the  failure  to 
adjourn  it  on  account  of  the  small  attendance,  where  it  had 
been  properly  advertised  and  there  were  about  a  dozen  per- 
sons present,  and  several  bids  made,  and  the  sale  realized 
more  than  the  amount  of  the  mortgage  and  expenses.®*  But 
the  supreme  court  of  Maryland,  in  the  case  of  Chilton  v. 
Brooks,®*  say  that  a  sale  of  land  under  a  power  in  a  mort- 
gage of  the  property,  for  $1,000  or  more  below  the  market 
value,  will  be  set  aside  where  it  was  purchased  by  the  mort- 

59  Newman  v.  Ogden,  82  Wis.  53,  63  148  Mass.  616,  20  N.  E.  200. 

51    N.    W.    1091.  6*  As  to  duty  to  postpone  sale  in 

^^  Chilton  V.  Brooks,  69  Md.  584,  foreclosure    by    advertisement    for 

16   Atl.  273.     See   ante.   630.  want  of  sufficient  bidders.    See  ante, 

61  Welsh  V.  Coley,  82  Ala.  363.  2  §  937. 

So.  733.  65  69  Md.  584,  16  Atl.  273. 

^^  Loveland    v.    Clark,    11    Colo. 
265,  18  Pac.  544. 


§  945]  STATUTORY  FORECLOSURE.  1327 

gagee,  and  the  sale  was  made  on  the  day  when  the  weather 
was  so  inclement  as  to  prevent  purchasers  from  attending.^^ 

The  supreme  court  of  Arkansas,  in  the  case  of  Matthews 
V.  Daniels,^'  say  that  a  sale  under  a  power  in  a  mortgage  can- 
not be  set  aside  merely  because  the  mortgagee  becomes  the 
purchaser  thereat,  in  the  absence  of  any  showing  that  it  is 
unfairly  or  unfaithfully  conducted. ^^ 

§  945.  Enjoining  sale. — Where  it  is  inequitable  that 
the  mortgagee  should  sell  the  property  under  the  power  of  sale 
contained  in  the  mortgage,  an  injunction  restraining  such 
sale  will  be  granted  on  the  application  of  the  mortgagor ,^^  or 
of  any  other  person  interested  in  preventing  the  sale. 

Thus,  if  the  mortgagee  claims  a  larger  amount  in  his 
notice  than  is  actually  due,'°  and  the  party  applying  for  the 
injunction  offers  to  pay  the  amount  really  due,"  or  if  the 
mortgage  is  usurious,'^^  or  if  the  amount  due  can  be  deter- 
mined only  by  a  judicial  finding,  an  injunction  restraining  the 
sale  may  be  properly  granted.'^ 

Where  the  mortgage  is  valid  and  due,  and  the  mortgagee 
is  conducting  the  foreclosure  according  to  statute,  the  sale 

8^  See  also  Mutual  Fire  Ins.  Co.  v.  held,  that  the  mortgagor's  grantee 

Barker,  17  App.  D.  C.  205.  might  maintain  a  bill  in  equity  to 

67  21  S.  W.  469.  restrain   the   sale   and   to   ascertain 

6*  See  ante,  §  610.  the   amount   actually  due.     Cole  v. 

69  Where  there  is  a  defence  to  the  Savage,  Clarke  Ch.   (N.  Y.)  482. 

mortgage,  the  mortgagor  may  pro-  '^  Vechte  v.  Brownell,  8  Paige  Ch. 

tect  himself  either  by  commencing  (N.  Y.)  212. 

an  action  to  restrain  the  sale,  or  by  '2  Hyland    v.    Stafford,    10    Barb, 

attending  the  sale  and  giving  notice  (N.     Y.)     558;     Cole    V.     Savage, 

of  the  facts.  Clarke  Ch.   (N.  Y.)  482;  Burnet  v. 

''^Cole  V.  Savage,  Clarke  Ch.  (N.  Denmston,  5  Johns.  Ch.  (N.  Y.)  35, 

Y.)  482.    Thus,  where  less  than  the  41. 

face     of     the    mortgage    was    ad-  "^^  Gooch   v.    Vaughan,  92    N.    C. 

vanced  when  it  was  given,  and  the  610;  Purnell  v.   Vaughan.  77  N.  C. 

mortgagee     advertised     under     the  268;    Capehart  v.   Biggs,   77   N.    C. 

power,  claiming  the  whole  face  of  261 ;  Kornegay  v.  Spicer,  76  N.  C. 

the  mortgage  as  being  due,  it  was  95. 


1328 


MORTGAGE    FORECLOSURES. 


[§   946 


will  not  be  enjoined.'*  The  mortgagee  is  entitled  to  fore- 
close at  any  time  after  default,  and  the  simple  fact  that  the 
time  selected  for  the  sale  is  at  a  season  of  the  year  when 
property  will  not  sell  to  the  best  advantage,  or  when  the  sale 
is  inconvenient  to  subsequent  incumbrancers,  is  not  a  ground 
for  interfering  with  the  sale.'^ 

Neither  will  the  sale  be  delayed  to  enable  several  owners 
of  the  equity  of  redemption,  or  junior  incumbrancers,  to  settle 
among  themselves  the  proportion  which  each  is  to  pay  towards 
the  discharge  of  the  mortgage,  unless,  perhaps,  a  sufficient 
sum  is  paid  into  court  to  secure  the  mortgagee  from  loss ;  in 
which  case,  it  seems  that  a  reasonable  time  will  be  alio  wed.'''® 
Where  the  amount  due  on  a  mortgage  has  been  judicially  de- 
termined, an  injunction  to  stay  the  sale  will  not  be  granted 
to  enable  an  appeal  to  be  taken,  if  the  rights  of  the  parties 
can  be  otherwise  fully  protected.'' 

§  946,  Damages  for  wrongful  injunction. — Where  a 
mortgagee  has  been  wrongfully  enjoined  from  proceeding  to 
sell  the  mortgaged  premises,  and  is  entitled  to  damages  in 
consequence,  such  damages  will  consist  of  his  necessary  coun- 
sel fees  for  services  rendered  in  dissolving  the  mortgagor's 
injunction,  and  also  on  tiie  reference,'^  besides  the  expenses 
incurred,'^  and  his  taxable  costs. ®° 


"^^  Jones  V.  Matthie,  11  Jur.  504; 
Whitworth  v.  Rhodes,  20  L.  J.  N. 
S.  (Ch.)  105. 

''^Bedell  v.  McClellan,  11  How. 
(N.  Y.)  Pr.  172. 

76  Brinkerhoff  v.  Lansing,  4  Johns. 
Ch.   (N.  Y.)  65,  8  Am.  Dec.  538. 

"  Outtrin  v.  Graves,  1  Barb.  Ch. 
(N.  Y.)  49. 

''^Lee  V.  Homer,  37  Hun  (N.  Y.) 
634.  See  Rose  v.  Post,  56  N.  Y. 
603 ;  Disbrow  v.  Gracia,  52  N.  Y. 
654;  Hovey  v.  Rubber  Tip  Pencil 
Co.  50  N.  Y.  335;  Andrews  v.  Glcn- 


ville  Woolen  Co.  SO  N.  Y.  282; 
Aldrich  v.  Reynolds,  1  Barb.  Ch. 
(N.  Y.)  613;  Edwards  v.  Bodine, 
11  Paige  Ch.   (N.  Y.)  223. 

'8  Lawton  v.  Green,  64  N.  Y.  326, 
331 ;  Aldrich  v.  Reynolds,  1  Barb. 
Ch.    (N.  Y.)   613. 

80  Aldrich  v.  Reynolds,  1  Barb. 
Ch.  (N.  Y.)  613.  See  Rose  v. 
Post,  56  N.  Y.  603 ;  Hovey  v.  Rub- 
ber Tip  Pencil  Co.  50  N.  Y.  335; 
Andrews  v.  Glcnville  Woolen  Co. 
50  N.  Y.  282;  Edzvards  v.  Bodine, 
11  Paige  Ch.  (N.  Y.)  223. 


§  948]  STATUTORY  FORECLOSURE.  1329 

§  947.  Lands  situated  in  another  state. — The  statutes 
of  New  York,  regulating  the  foreclosure  of  mortgages  by 
advertisement,  do  not  apply  to  mortgages  on  real  estate  situ- 
ated out  of  the  state;  *^  consequently,  the  courts  of  New  York 
have  no  authority  to  enjoin  a  mortgagee  of  lands  which  are 
in  another  state,  from  selling  such  lands  at  public  sale  within 
the  state,  according  to  the  terms  of  the  mortgage  security, 
upon  the  mere  allegation  that  such  power  is  void,  particularly 
where  no  contrary  statute  of  the  state  or  territory  where  the 
lands  are  situated  is  alleged,  and  the  invalidity  of  the  power 
is  not  made  apparent.*^ 

Thus,  where  a  mortgage,  executed  by  a  mining  corporation 
upon  lands  in  Colorado,  authorized  a  sale,  after  a  certain 
specified  notice,  in  the  city  of  New  York,  the  court  held,  in 
an  action  to  restrain  a  sale  thus  authorized,  that,  in  the  absence 
of  any  statutory  regulation,  the  parties  had  the  power  to  agree 
upon  the  manner  of  sale;  that  the  statute  of  New  York,  in 
reference  to  the  sale  of  mortgaged  premises,  had  reference 
only  to  real  estate  in  that  state;  and  that  there  was  no  ground 
for  equitable  relief,  as  there  was  no  proof  that  the  sale,  as  pro- 
vided for  in  the  mortgage,  was  in  conflict  with  the  laws  of 
Colorado.*' 

§  948.  Effect  of  sale  by  advertisement. — The  New 
York  code  ®*  provides,  that  "a  sale,  made  and  conducted  as  pre- 
scribed by  the  statute,  to  a  purchaser  in  good  faith,  is  equiva- 
lent to  a  sale,  pursuant  to  judgment  in  an  action  to  foreclose 
the  mortgage,  so  far  only  as  to  be  an  entire  bar  of  all  claim 
or  equity  of  redemption,  upon,  or  with  respect  to,  the  property 
sold,  of  each  of  the  following  persons :  ( 1 )  the  mortgagor,  his 
heir,  devisee,  executor  or  administrator;  (2)  each  person 
claiming  under  any  of  them,  by  virtue  of  a  title  or  of  a  lien  by 
judgment  or  decree,  subsequent  to  the  mortgage,  upon  whom 

^^Elliottv.  Wood,  45  N.Y.  71.  ^^  Carpenter   v.    Blackhawk    Gold 

*^  Central    Gold    Mining    Co.    v.  Mining  Co.  65  N.  Y.  43. 

Piatt,  3  Daly   (N.  Y.)    263.  84  n.  Y.  Code  Civ.  Proc.  §  2395. 
Mortg.  Vol.  II.— 84. 


1330  MORTGAGE    FORECLOSURES.  [§    949 

the  notice  of  sale  was  served,  as  prescribed  by  the  statute ;  '* 

(3)  each  person  so  claiming,  whose  assignment,  mortgage,  or 
other  conveyance  was  not  duly  recorded  in  the  proper  book 
for  recording  the  same  in  the  county,  or  whose  judgment  or 
decree  was  not  duly  docketed  in  the  county  clerk's  office,  at 
the  time  of  the  first  publication  of  the  notice  of  sale;  and  the 
executor,    administrator,    or    assignee    of    such    a    person; 

(4)  every  other  person,  claiming  under  a  statutory  lien  or  in- 
cumbrance, created  subsequent  to  the  mortgage,  attaching  to 
the  title  or  interest  of  any  person,  designated  in  either  of  the 
foregoing  subdivisions;  (5)  the  wife  or  widow  of  the  mort- 
gagor or  of  a  subsequent  grantee,  upon  whom  notice  of  the 
sale  was  served  as  prescribed  by  statute,  where  the  lien  of  the 
mortgage  was  superior  to  her  contingent  or  vested  right  of 
dower,  or  her  estate  in  dower."  '® 

§  949.  Sale  firm  and  binding  on  all  parties. — The  title 
of  a  purchaser  in  good  faith  at  such  a  sale,  is  the  same  as 
the  title  acquired  by  a  purchaser  at  a  sale  made  under  a 
decree  of  foreclosure  in  an  equitable  action."     Where  such 

85  A  judgment  which  is  docketed  Cronkhite,  1  Hill  (N.  Y.)   107,  and 

after    the    first    publication    of    the  see  Post  v.  Arnot,  2  Den.   (N.  Y.) 

notice,  and  before  the  sale,  will  not  344. 

be  barred  by  the  foreclosure,  if  the  ^^  N.  Y.  Code  Civ.  Proc.  §  2395. 
creditor  is  not  served  with  the  Foreclosure  by  advertisement  under 
notice,  and  the  holder  thereof  may  a  power  of  sale  contained  in  a  pur- 
redeem  from  the  mortgage.  Groff  chase  money  mortgage,  not  execut- 
v.  Morehouse,  51  N.  Y.  503.  In  an  ed  by  the  mortgagor's  wife,  will  bar 
early  case,  it  appeared  that  a  party,  her  right  of  dower.  Brackett  v. 
having  a  judgment  subsequent  to  a  Baiitn,  50  N.  Y.  8.  Compare  N.  Y. 
mortgage,  sold  the  premises  under  Code  Civ.  Proc.  §§  2388,  2395. 
it,  and  acquired  a  right  to  a  deed  87  jsj.  Y.  Code  Civ.  Proc.  §  2395. 
prior  to  the  sale  under  the  mort-  See  Decker  v.  Boice.  19  Hun  (N. 
gage,  though  he  did  not  receive  his  Y.)  152,  afif'd  83  N.  Y.  215;  Jack- 
deed  until  after  the  sale;  it  was  son  v.  Henry,  10  Johns.  (N.  Y.) 
held  that  the  deed  took  effect  from  185,  6  Am.  Dec.  328;  Doolittle  v. 
the  time  when  it  might  have  been  Lewis.  7  Johns.  Ch.  (N.  Y.)  45.  50, 
demanded,  and  that  the  judgment  11  .A.m.  Dec.  389;  Slee  v.  Manhattan 
creditor's  title  was  cut  off  by  the  Ins.  Co.  1  Paige  Ch.  (N.  Y.)  48,  69; 
statutory     foreclosure.       Klock     v.  Otis  v.  McMillan,  70  Ala.  46. 


§    949]  STATUTORY    FORECLOSURE.  1331 

a  sale  is  made  strictly  as  prescribed  by  statute,  all  questions 
which  would  have  been  determinable  in  an  equitable  action 
to  foreclose  a  mortgage,  will  be  settled  by  such  sale.** 

As  the  statute  has  no  saving  clause  for  such  persons  as  may 
be  under  a  disability  at  the  time,  it  is  believed  that  the  courts 
can  make  no  exceptions  in  their  favor  on  the  ground  of  any 
inherent  equity  applicable  to  the  case.  Thus,  infants  not  be- 
ing excepted  from  the  operation  of  the  statute,  the  courts  can 
make  no  exception  in  their  favor,  and  their  equity  of  redemp- 
tion will  be  effectually  and  absolutely  barred  by  a  regular  sale 
under  the  power.*^ 

The  theory  of  the  statute  is  that  all  foreclosures  should  be 
final,  where  they  are  free  from  fraud  and  gross  irregularity.^" 
But  the  requirements  of  the  statute  must  be  strictly  complied 
with,  in  order  to  cut  off  the  rights  of  the  mortgagor  and  of 
subsequent  grantees  or  incumbrancers;  the  object  of  the  stat- 
ute being  to  relieve  interested  parties  from  the  expenses  of  an 
action,  and  to  enable  persons,  not  learned  in  the  law,  to  con- 
duct foreclosure  proceedings,  it  follows  that  the  construction 
placed  upon  the  statute  should  be  liberal  and  not  technical. ^^ 

And  the  court  of  appeals  of  New  York,  in  the  case  of 
Lewis  V.  Duane,^*  hold  that  a  mortgagor  with  whose  know- 
ledge and  approval  the  mortgagee  makes  a  foreclosure  sale 
by  advertisement  without  discharging  of  record  certain  liens 

88  Warner  v.  Blakeman,  36  Barb.  The    validity    of    a    foreclosure    by 

(N.  Y.)  501,  aff'd  4  Keyes  (N.  Y.)  advertisement     cannot     be     passed 

487,  4  Abb.  App.  Dec.  530.  upon  in  an  action  to  which  the  pur- 

^^  Demarest  V.  Wynkoop,  3  Johns.  chaser   is   not   a   party.     Candee  v. 

Ch.    (N.  Y.)    129,   142,  8  Am.  Dec.  Burke,  1  Hun  (N.  Y.)  546.  4  T.  & 

467,  473.  C.  (N.  Y.)  143. 

^^  Wilson  V.    Troup,  2  Cow.    (N.  ^'^  Jackson    v.    Henry,    10    Johns. 

Y.)   195,  14  Am.  Dec.  458;  Jackson  (N.  Y.)  195,  6  Am.  Dec.  328;  Huh- 

V    Henry,   10  Johns.    (N.   Y.)    195,  hell  v.  Sibley,  5  Lans.   (N.  Y.)   51; 

6  Am.  Dec.  328;  Doolittle  v.  Lewis,  Vroom  v.  Ditmas,  4  Paige  Ch.  (N. 

7  Johns.   Ch.    (N.  Y.)    50.    11    Am.  Y.)  526. 

Dec.  389;  Vroom  v.  Ditmas,  4  Paige  92  141  n    y.  302,  36  N.  E.  322,  57 

Ch.  (N.  Y.)  531 ;  Slee  v.  Manhattan      N.  Y.  S.  R.  410. 
Ins.  Co.   1   Paige  Ch.    (N.   Y.)    70. 


1332  MORTGAGE    FORECLOSURES.  [§    950 

paid  off  by  him  under  his  contract  with  the  mortgagor,  and 
becomes  the  purchaser,  cannot  object  that  intending  pur- 
chasers might  have  been  prevented  from  bidding  on  account 
of  an  apparently  double  incumbrance  on  the  property,  espe- 
cially where  he  is  not  injured  thereby  and  he  knew  that  no 
one  but  the  mortgagee  could  afford  to  take  the  property 
burdened  with  its  actual  liability. 

§  950.  Effect  of  sale  on  omitted  parties — Rights  of  ten- 
ants.— The  claim  of  a  party  who  was  not  duly  served  with 
notice  in  the  proceedings,  will  not  be  barred,  even  though  he 
had  actual  knowledge  of  the  sale.  Where,  however,  the  value 
of  the  mortgaged  premises  is  less  than  the  amount  of  the 
mortgage  debt,  with  the  other  liens  prior  to  the  lien  which  was 
not  barred,  such  lien  will  be  of  no  value,  and  a  purchaser  in 
good  faith  may  maintain  an  action  to  enjoin  the  lienor  from 
enforcing  his  claim.^^ 

The  rights  of  a  tenant  holding  under  the  mortgagor,  where 
the  demise  was  made  subsequent  to  the  mortgage,  will  be 
extinguished  by  the  sale ;  ^^  and  the  mortgagee,  on  acquiring 
possession  of  the  premises,  will  be  entitled  to  the  crops  sown 
by  the  lessee  and  growing  on  the  land  at  the  time  of  the  sale.^* 
The  same  rule  is  true  as  to  fixtures.®^ 

§  951.  Purchaser's  title — What  passes  by   sale. — The 

effect  of  every  statutory  foreclosure  is  to  transfer  to  the 
purchaser  the  rights  of  the  mortgagee  and  of  the  mortgagor.^''^ 

^^  Root  V.   Wheeler,  12  Abb.   (N.  also  Penryn  Fruit  Co.  v.  Sherman- 

Y.)    Pr.  294.  Worrell  Fruit  Co.  142  Cal.  643,  100 

^'^Simers  v.  Saltus,  3   Den.    (N.  Am.  St.  Rep.  150,  76  Pac.  484.    See 

Y.)  214.  ante,  §  177. 

^^Gillett  V.  Balcom,  6  Barb.   (N.  96  See  ante,  §§  490-492,  714-717. 

Y.)    370;    Aldrich    v.    Reynolds,    1  ^"^  Briggs   v.    Crawford,    121    Pac. 

Barb.  Ch.  (N.  Y.)  613;  5/i^/'/!arc/ V.  381     (Cal.);    Croom    v.    Ditmas,   4 

Philbrick,    2    Den.     (N.    Y.)     176;  Paige  Ch.  (N.  Y.)  526.    Where  the 

Lane  v.  King,  8  Wend.  (N.  Y.)  584,  only    deed    to    the    purchaser    pro- 

24  Am.  Dec.   105.     See  Gardner  v.  duced,   was   one  executed   nineteen 

Finley,  19  Barb.  (N.  Y.)  317.     See  years   after   the   sale,   it   was   held 


§    951]  STATUTORY    FORECLOSURE.  1333 

The  regularity  of  the  sale,  however,  constitutes  the  very  foun- 
dation of  the  purchaser's  title;  if  it  is  irregular,  he  will  acquire 
no  rights  by  his  purchase.^®  If  there  are  judgments  subse- 
quent to  the  mortgage,  which  continue  a  lien  on  the  premises 
at  the  time  of  the  sale,  the  purchaser  will  take  the  legal  and 
equitable  interest  in  the  property  as  against  the  mortgagor 
and  all  persons  claiming  through  and  under  him,  subject  to 
the  equitable  right  of  such  lienors  to  redeem.^^ 

Where  the  mortgagee  becomes  the  purchaser,  the  whole 
mortgage  debt  will  be  extinguished;  but,  if  a  third  person 
purchases,  the  mortgagor,  if  compelled  to  pay  the  residue  of 
the  mortgage,  will  be  entitled  to  an  assignment  thereof,  so  as 
to  reimburse  himself  from  the  land.^ 

The  title  of  the  purchaser  of  mortgaged  premises  on  fore- 
closure by  advertisement  is  not  valid  and  perfect  unless  all 
the  requirements  of  the  statute  under  which  it  was  made 
are  substantially  complied  with.^  Thus  the  sale  is  not  com- 
plete until  the  affidavits  of  sale  and  publication  and  of  service 
of  notice  and  the  certificate  of  sale  are  filed  and  recorded  as 
required.'     In  each  instance  the  statute  in  force  at  the  time 

that  as  there  were  no  intervening  where     the     land    lies.      Hollis    v. 

rights,  it  might  be  treated  as  good  Hollis,  84  Me.  96,  24  Atl.  581. 
by    relation    back,    especially    in    a  ^  Covudry  v.  Turner,  85  Hun   (N. 

court  of  equity.    Demarcst  V.  Wyn-  Y.)  451,  Z2  N.  Y.  Supp.  889,  66  N. 

koop,  3  Johns.  Ch.   (N.  Y.)    129,  8  Y.  S.  R.  207.    See  CrombieN.  Little, 

Am.  Dec.  467.  47  Minn.  581,  50  N.  W.  823;  Cable 

98  See  Jackson  v.  Clark,  7  Johns.  v.  Minneapolis  Stock  Yards  and  P. 
(N.  Y.)  217.  Co.  A7  Minn.  417,  50  N.  W.  528; 

99  Benedict  v.  Gilnian,  4  Paige  Ryder  v.  Hulett,  44  Minn.  353,  46 
Ch.  (N.  Y.)  58.  See  Robinson  v.  N.  W.  559;  Crombie  v.  Little.  47 
Ryan,  25  N.  Y.  320.  Minn.  581,  50  N.  W.  823;  Johnson 

1  Cox  V.  Wheeler,  7  Paige  Ch.  v.  Day,  2  N.  D.  295,  50  N.  W.  701. 
(N.  Y.)  248.  In  Minnesota — Failure  to  record 

2  Thus  it  has  been  said  that  a  certificate  of  sale  upon  foreclosure 
certificate  of  foreclosure  by  publica-  of  a  mortgage,  though  invalidating 
tion,  under  Maine  Revised  Statutes,  the  certificate,  does  not  avoid  the 
chapter  90,  §  5,  is  fatally  defective  sale,  but  another  certificate  may  be 
if  it  recites  that  the  notice  was  obtained  from  the  sheriflF.  Crombie 
given  in  a  newspaper  "published,"  v.  Little,  47  Minn.  581,  50  N.  W. 
instead  of  "printed,"  in  the  county  823. 


1334 


MORTGAGE    FORECLOSURES. 


[§    952 


of  a  foreclosure  regulates  the  procedure ;  *  and  the  recording 
of  a  certificate  of  sale  under  a  power  in  a  mortgage  ten  months 
after  the  sale  is  a  compliance  with  a  statute  which  prescribes 
no  period  within  which  the  certificate  shall  be  recorded.^ 

The  supreme  court  of  Minnesota,  in  the  case  of  Crombie 
V.  Little,^  say  that  an  instrument  purporting  to  be  a  sheriff's 
deed  on  foreclosure,  made  without  authority  of  law,  or  in  pur- 
suance of  a  certificate  which  has  become  void  for  failure  to 
record  it,  will  operate  as  a  certificate  of  sale,  where  it  contains 
by  way  of  recital  or  positive  statement  all  the  requisites  of  a 
certificate,  except  that  it  does  not  in  express  terms  state  that 
the  land  is  subject  to  redemption. 

Where  all  the  requirements  of  the  statute  are  complied 
with,  the  purchaser  of  a  mortgaged  estate  at  a  sale  under  a 
power  of  sale  is  entitled  to  have  it  with  the  rights  and  ease- 
ments appurtenant  to  it  as  they  existed  when  the  power  of 
sale  was  given.' 

§  952.  Defective  foreclosure. — Where  a  foreclosure  is 
regularly  conducted  in  all  respects,  except  an  omission  to 
serve  some  one  party  with  a  notice  of  the  sale,   it  will  be 


Same — Sheriff's  certificate  of  sale 
upon  foreclosure  of  a  mortgage  by 
advertisement  under  Minnesota 
General  Laws  1862.  chapter  19,  §  3, 
is  not  invalidated  by  an  error  in 
stating  the  amount  of  the  note  se- 
cured by  the  mortgage,  or  by  de- 
scribing the  mortgage  as  executed 
on  the  day  of  its  signing,  wrhen  it 
was  in  fact  acknowledged  on  the 
next  day.  Cable  v.  Minneapolis 
Stock  Yards  &  P.  Co.  47  Minn.  417, 
50  N.  W.  528. 

In  North  Dakota — Sale  by  ad- 
vertisement under  a  mortgage  is 
not  invalidated  by  failure  of  the  of- 
ficer making  it  to  comply  with  Da- 
'kota  Compiled  Laws,  §  5420,  by 
filing,  within  ten  days  after  the  sale, 


a  duplicate  certificate  of  sale  in  the 
office  where  the  mortgage  is  re- 
corded. Johnson  v.  Day,  2  N.  D. 
295,  50  N.  W.  70L 

*  But  the  rights  of  the  parties  are 
determined  by  the  law  in  force 
when  the  mortgage  was  executed. 
Nichols  V.  Tingstad,  10  N.  D.  172, 
86  N.  W.  694. 

^  Ryder  v.  Hulett,  44  Minn.  353, 
46  N.  W.  559. 

6  47  Minn.  581,  50  N.  W.  823. 

T  Bull's  Petition,  15  R.  I.  534,  10 
Atl.  484.  See  Swedish- American 
National  Bank  v.  Connecticut  Mu- 
tual Life  his.  Co.  83  Minn.  377,  86 
N.  W.  420.  See  also  Simpson  v. 
Wabash  R.  R.  Co.  145  Mo.  64,  46 
S.  W.  739. 


§  952]  STATUTORY  FORECLOSURE.  1335 

valid  as  to  all  persons  who  were  served.  The  persons  who 
were  properly  served  will  be  barred  of  their  right  of  reder.ip- 
tion,  but  the  right  of  redemption  will  still  remain  in  the 
party  who,  being  entitled  to  notice,  was  not  served  with  it.' 

Thus,  an  omission  to  make  the  wife  of  the  mortgagor  a 
party,  she  having  joined  in  the  mortgage,  merely  leaves  her 
the  right  of  redemption,  but  it  does  not  render  the  foreclo- 
sure invalid  as  to  the  other  parties  properly  served.^  It  seems, 
however,  that  the  purchaser  at  such  a  sale,  on  obtaining  pos- 
session of  the  premises,  is  entitled  to  retain  it  until  the  amount 
due  on  the  mortgage  is  paid  to  him.^° 

Where  subsequent  incumbrancers  were  not  properly  cut  off 
by  the  proceedings  under  the  statute,  a  strict  foreclosure  was 
formerly  held  to  be  the  proper  remedy  to  extinguish  such 
rights." 

If  a  statutory  foreclosure  is  set  aside  for  any  reason,  pro- 
ceedings for  the  foreclosure  of  the  mortgage  may  be  com- 
menced de  novo.  This  is  also  true  if  an  attempted  foreclo- 
sure fails  for  any  cause  whatever;  the  mortgage  does  not  be- 
come null  and  void  by  such  failure,  but  stands  restored  and 
as  though  no  proceedings  had  ever  been  taken  upon  it.^^ 

It  is  thought  that  a  sale  by  advertisement  under  a  mortgage 
providing  for  an  attorney's  fee  is  not  invalidated  by  the  fact 
that  such  fee  was  included  in  the  amount  for  which  the  land 
was  sold,  without  the  affidavit  required  by  the  statute,^'  to 
entitle  the  mortgagee  to  collect  the  fee;  but  in  such  case,  if 
the  proceeds  of  the  sale  were  sufficient  to  cover  the  mortgage 
debt  and  all  the  costs  and  disbursements,  including  such  fee, 
the  mortgagor  may  collect  the  amount  of  such  fee  from  the 
officer  making  the  sale.^*     The  supreme  court  of  Michigan 

^  Groff   V.    Morehouse,   51    N.   Y.  ^^  Benedict  v.  Gilman,  4  Paigt  Ch. 

503;  Wetmore  v.  Roberts,  10  How.  (x\.  Y.)  58,  63. 

(N.    Y.)    Pr.    51;    Vanderkemp    v.  ^^  Stack  pole  \.  Rohhins,  4&  li.  Y. 

Shelton,  11  Paige  Ch.  (N.  Y.)  28.  665. 

^Candee   v.    Burke,    1    Hun    (N.  13  Dak.  Comp.  L.  §  5429. 

Y.)  546.  ^'^  Johnson  v.  Day,  2  N.  D.  295, 

^^  Brown  v.  Smith,  116  Mass.  108.  50  X.  W.  701. 


1336  MORTGAGE    FORECLOSURES.  [§    QSJ 

say  that  a  sale  under  statutory  foreclosure  by  advertisement 
of  a  mortgage  given  as  collateral  to  the  debt  of  a  third  per- 
son, primarily  secured  by  a  chattel  and  a  real  estate  mortgage, 
is  void  where  the  mortgagee  has  taken  possession  of  the 
chattels  without  foreclosure  or  sale,  and  has  taken  no  steps 
to  foreclose  the  real  estate  mortgage. ^^ 

Where  a  foreclosure  sale  is  had  without  a  sufficient  power 
of  sale  in  the  mortgage,  the  purchaser,  although  not  obtaining 
title,  nevertheless  succeeds  to  the  rights  of  the  mortgagee.^® 

§  953.  Affidavits  of  the  proceedings. — The  New  York 

Code  of  Civil  Procedure  ^'  provides,  that  "an  affidavit  of  the 
sale,  stating  the  time  when,  and  the  place  where,  the  sale  was 
made;  the  sum  bid  for  each  distinct  parcel,  separately  sold; 
the  name  of  the  purchaser  of  each  distinct  parcel;  and  the 
name  of  the  person  or  persons,  court  officer  or  other  officer,  to 
whom  the  poceeds  of  the  sale  were  paid,  and  the  sums  there- 
of must  be  made  by  the  person  who  officiated  as  auctioneer 
upon  the  sale.  An  affidavit  of  the  publication  of  the  notice 
of  sale,  and  of  the  notice  or  notices  of  postponement,  if  any, 
may  be  made  by  the  publisher  ^®  or  printer  of  the  newspaper 
in  which  they  were  published,  or  by  his  foreman,  or  principal 
clerk.  An  affidavit  of  the  affixing  of  a  copy  of  the  notice,  at 
or  near  the  entrance  of  the  proper  court  house,  may  be  made 
by  the  person  who  so  affixed  it,  or  by  any  person  who  saw 
it  so  affixed,  at  least  eighty-four  days  before  the  day  of  sale.^' 
An  affidavit  of  the  affixing  of  a  copy  of  the  notice  in  the 
book,  kept  by  the  county  clerk,  may  be  made  by  the  county 
clerk,  or  by  any  person  who  saw  it  so  affixed,  at  least  eighty- 
four  days  before  the  day  of  sale.     An  affidavit  of  the  service 

15  Drayton  V.  Chandler,  93  Mich.  tion,   required  by  law  to  be  made 

383,  53  N.  W.  558.  by  the  printer,  or  his  foreman,  or 

^^  Lariverre  v.   Rains,   112   Mich.  principal  clerk.     Bunce  v.  Reed,  16 

276,  70  N.  W.  583.  Barb.  (N.  Y.)  347. 

i'  N.  Y.  Code  Civ.  Proc.  §  2396.  ^^  Hornby    v.    Cramer,    12    How. 

18  The  publisher  of  the  newspaper  (N.  Y.)  Pr.  490. 
may  make  the  affidavit  of  publica- 


§    954]  STATUTORY    FORECLOSURE.  1337 

of  a  copy  of  the  notice  upon  the  mortgagor,  or  upon  any  other 
person,  upon  whom  the  notice  must  or  may  be  served,  may  ^° 
be  made  by  the  person  who  made  the  service.  Where  two  or 
more  distinct  parcels  are  sold  to  different  purchasers,  separate 
affidavits  may  be  made  with  respect  to  each  parcel,  or  one  set 
of  affidavits  may  be  made  for  all  the  parcels."  ^^ 

The  Code  also  provides,^^  that  "the  matters  required  to  be 
contained  in  any  or  all  of  the  affidavits  above  specified,  may 
be  contained  in  one  affidavit,  where  the  same  person  deposes 
with  respect  to  them.  A  printed  copy  of  the  notice  of  sale 
must  be  annexed  to  each  affidavit ;  and  a  printed  copy  of  each 
notice  of  postponement  must  be  annexed  to  the  affidavit  of 
publication,  and  to  the  affidavit  of  sale.  But  one  copy  of  the 
notice  suffices  for  two  or  more  affidavits,  where  they  all  refer 
to  it,  and  are  annexed  to  each  other,  and  filed  and  recorded 
together."  ^^ 

§  954.  Sufficiency  of  affidavits. — It  has  been  held, 
that  a  sale  made  under  a  foreclosure  by  advertisement,  pur- 
suant to  the  statute,  will  bar  the  equity  of  redemption,  al- 
though the  usual  affidavits  may  not  be  made.'^*  The  earlier 
cases  held,  that  every  requirement  of  the  statute  must  be 
strictly  complied  with;  and  that  if  the  premises  are  purchased 
by  the  mortgagee,  the  foreclosure  will  not  be  complete  with- 
out the  affidavits  which  stand  in  the  place  of  the  deed.^^    But 

20  The  statute  is  permissive,  but  ^3  Mowry  v.   Sanborn,   72   N.   Y. 

carries  permission  only  to  the  per-  534. 

son  who  made  the  service.    Deutsch  24  ggg  Mowry  v.  Sanborn,  68  N. 

V.  Haab,  135  App.  Div.  756,  119  N  Y.  153;  Tuthill  v.  Tracy,  31  N.  Y. 

Y.  Supp.  911.  157;    Howard   v.    Hatch,   29    Barb. 

21  N.  Y.  Code  Civ.  Proc.  §  2396,  (N.  Y.)  297;  Osborn  v.  Merwiyi,  12 

See  Mowry  v.   Sanborn,  72   N.   Y.  Hun   (N.  Y.)   332,  revs'g  50  How. 

534,  68  N.  Y.   153,  65   N.  Y.  581;  (N.  Y.)   Pr.  183.     See  N.  Y.  Code 

Hubbell  V.   Sibley,   50   N.   Y.   468 ;  Civ.  Proc.  §  2400. 

Bryan  v.  Butts,  27   Barb.    (N.   Y.)  ^^Bryan   v.    Butts,   27   Barb.    (N. 

503;   Hornby  v.    Cramer,   12   How.  Y.)    503;    Layman   v.    Whiting,   20 

(N.  Y.)  Pr.  490.  Barb.    (N.  Y.)   559;  Cohoes  Co.  v. 

82  N.  Y.  Code  Civ.  Proc.  §  2397.  Gross.  13  Barb.  (N.  Y.)  138;  Arnot 

V.  McClure,  4  Den  (N.  Y.)  41. 


1338  MORTGAGE    FORECLOSURES.  [§    955 

it  is  said  in  the  case  of  Mowry  v.  Sanborn,^^  that  the  statutory 
proofs  of  foreclosure  and  sale  are  to  be  liberally  construed, 
and  are  only  required  to  be  certain  to  a  common  intent;  and 
that  if  they  are  so,  though  technically  defective,  they  will  be 
sufficient. 

If  no  affidavits  are  made,  and  a  person  other  than  the  mort- 
gagee becomes  the  purchaser,  common-law  proof  may  be  made 
of  the  publication  of  the  notice. ^''^  Where  the  affidavits  of 
publication  and  sale  operate  as  a  conveyance,  they  cannot  be 
controverted  by  the  purchaser  and  those  claiming  under  him ;  ^^ 
but  such  affidavits  are  not  conclusive  as  to  the  facts  therein 
stated,  when  the  premises  are  purchased  by  the  owner  of  the 
mortgage.  Where  the  terms  of  the  sale  are  not  stated  in  the 
affidavits,  oral  evidence  will  be  admissible  to  prove  them.^^ 

§  955.  Contents  of  affidavits. — The  affidavits  should 
show  that  the  proceedings  were  conducted  according  to  the 
statute  in  force  when  the  default  occurred ;  ^°  they  must  be 
full  enough  in  details  to  show  that  the  statute  was  complied 
with,  because  a  foreclosure  by  advertisement  is  technical  and 
not  a  proceeding  in  which  a  court  of  equity  can  remedy 
defects.'^  An  affidavit  which  simply  states,  that  publication 
of  the  notice  of  sale  was  had  "in  each  week,"  instead  of  "in 
each  and  every  week,"  ^'^  or  that  the  notice  of  sale  was  affixed 
to  the  door  of  the  court  house  in  said  county,  "the  place  where 
the  courts  are  directed  to  be  held,"  ^^  or  that  the  notice  was 
affixed  twelve  weeks  before  the  sale,   without  showing  that 

26  72  N.  Y.  534,  revs'g  11  Hun  (N.  428;  Mowry  v.  Sanborn,  72  N.  Y. 

Y.)  545.  534,  68  N.  Y.  153. 

^"^  Brewster  v.    Power,    10    Paige  ^^  James  v.  Stull,  9  BsiTh.  (N.  Y.) 

Ch.    (N.  Y.)   562.     See  also  dial-  482. 

mers  V.    Wright,  5   Robt.    (N.   Y.)  ^^  D wight    v.    Phillips,    48    Barb. 

713.  (N.  Y.)    116. 

^^  Layman   v.    Whiting,   20    Barb.  ^'^  Howard  v.  Hatch,  29  Barh.  (N. 

(N.    Y.)    559;    Arnot   v.    McClure,  Y.)  297. 

4  Den.  (N.  Y.)  41.  ^^  Buncc   v.   Reed,   16   Barb.    (N. 

^^  Story   V.    Hamilton,   86    N.    Y.  Y.)   347. 


§  956]  STATUTORY  FORECLOSURE.  1339 

the  party  making  the  affidavit  afterwards  saw  it  there,  is  suffi- 
cient.'* 

But  it  is  not  enoiugh  to  state,  that  the  notice  was  posted 
"in  a  proper  manner,"  or  served  on  "certain  persons  named 
therein,"  or  that  it  "was  properly  folded  and  directed,"  and 
that  a  "proper  postage-stamp  was  placed  on  each  of  said 
letters,"  without  stating  the  mode  of  folding  and  directing, 
and  the  place  of  residence  of  the  persons  for  whom  the  notice 
was  intended.^*  The  affidavits  must  show  that  the  places  to 
which  the  notices  were  mailed  to  the  parties,  were  the  resi- 
dences of  such  parties,^®  because  the  fact  of  residence  is  impor- 
tant, and  should  be  stated  positively  and  with  accuracy ;  ^'  but 
it  seems  that  a  foreclosure  by  advertisement  and  sale  will  not 
be  void,  because  the  affidavit  of  service  of  the  notice  on  the 
mortgagors  by  mail,  was  on  information  and  belief  only,  as 
to  their  place  of  residence,  where  it  is  not  shown  that  the 
mortgagors  failed  to  receive  such  notices,  or  that  they  did  not 
reside  at  the  place  mentioned  in  the  affidavit,  at  the  time  the 
notices  were  mailed  to  them.^' 

In  New  York,  since  the  amendment  of  1844,  requiring 
service  of  the  notice,  as  well  as  the  publication  and  posting 
thereof,  the  affidavit  must  state  that  such  service  was  made.^^ 
A  statement  in  the  affidavit  that  service  was  made  upon  a  per- 
son, naming  him  as  "administrator,"  has  been  held  sufficient, 
and  it  has  been  held  further,  that  the  object  of  the  statute  was 
thereby  fully  complied  with.*" 

§  956.  Amending  affidavits. — If  the  affidavits  are  defec- 
tive, it  seems  that  amended  affidavits  may  be  filed  according 

34  Hornby    v.    Cramer,    12  How.          38  Mowry    v.    Sanborn,   62    Barb. 
(N.  Y.)   Pr.  490.  (N.  Y.)  223. 

35  Chalmers  v.  Wright,  5  Robt.  39  Layman  v.  Whiting,  20  Barb. 
(N.  Y.)  713.  (N.  Y.)  559. 

^^Dwight    V.    Phillips,    48    Barb.  ^George  v.  Arthur,  2  Hun    (N. 

(N.  Y.)   116.  Y.)  406,  4  T.  &  C.  (N.  Y.)  635. 

^'^  Mowry  v.  Sanborn,  7  Hun  (N. 
Y.)  380,  62  Barb.  (N.  Y.)  223. 


1340  MORTGAGE    FORECLOSURES.  [§    957 

to  the  facts;  as  against  the  mortgagor,  at  least,  they  may  be 
filed  at  any  time.*^  But  in  an  action  for  ejectment,  brought 
against  the  purchaser  at  a  sale,  it  was  held  that  the  court 
had  no  power  to  allow  the  purchaser  to  amend  the  affidavits 
so  as  to  state  the  facts  omitted.  Statutory  proceedings  to 
foreclose  a  mortgage  are  not  proceedings  in  a  court,  such 
as  to  authorize  the  court  to  supply  omissions,  or  to  remedy 
defects  in  the  affidavits.*^ 

§  957.  Recording  affidavits.  —  The  Code  provides,*^ 
that  the  affidavits  recjuired  to  be  made  "may  be  filed  in  the 
office  for  recording  deeds  and  mortgages,  in  the  county  where 
the  sale  took  place.  They  must  be  recorded  at  length  by  the 
officer  with  whom  they  are  filed,  in  the  proper  book  for  re- 
cording deeds.  The  original  affidavits,  so  filed,  the  record 
thereof,  and  a  certified  copy  of  the  record,  are  presumptive 
evidence  of  the  matters  of  fact  therein  stated,  with  respect  to 
any  property  sold,  which  is  situated  in  that  county.  Where 
the  property  sold  is  situated  in  two  or  more  counties,  a  copy 
of  the  affidavits,  certified  by  the  officer  with  whom  the  origi- 
nals are, filed,  may  be  filed  and  recorded  in  each  other  county, 
wherein  any  of  the  property  is  situated.  Thereupon  the  copy 
and  the  record  thereof  have  the  like  effect,  with  respect  to 
the  property  in  that  county,  as  if  the  originals  were  duly  filed 
and  recorded  therein." 

The  Code  also  provides,**  that  "a  clerk  or  a  register,  who 
records  any  affidavits,  or  a  certified  copy  thereof,  filed  with 
him,  must  make  a  note  upon  the  margin  of  the  record  of  the 
mortgage,  in  his  office,  referring  to  the  book  and  page,  or 
the  copy  thereof,  where  the  affidavits  are  recorded." 

The  title  of  a  mortgagee,  who  purchases  the  premises  on 

^^Bunce  v.  Reed,   16   Barb.    (N.  ^  D wight    v.    Phillips,    48    Barb. 

Y.)  347.    See  Story  V.  Hamilton,  86  (N.  Y.)    116. 

N.  Y.  428;  Mowry  v.  Sanborn,  72  «  N.  Y.  Code  Civ.  Proc.  §  2398. 

N.    Y.   534.     But   a   different    rule  «*  N.  Y.  Code  Civ.  Proc.  §  2399. 
seems    to    be    held    in    Dwiglit    v. 
Phillips,  48  Barb.  (N.  Y.)  116. 


§  959]  STATUTORY  FORECLOSURE.  1341 

foreclosure  by  advertisement,  is  not  complete  until  the  affi- 
davits of  sale  and  publication  and  of  service  of  notice  are 
filed  and  recorded.^^ 

§  958.  Necessity  of  recording  affidavits. — An  affidavit 
of  the  service  of  the  notice  of  sale  upon  the  parties  entitled 
thereto,  is  a  necessary  part  of  the  record;  without  it,  the 
record  v^rill  be  fatally  defective.*^  In  a  foreclosure  by  adver- 
tisement the  legal  title  to  the  premises  is  transferred  by  re- 
cording the  affidavits;  a  plaintiff  in  ejectment,  claiming  under 
a  statutory  foreclosure,  cannot  support  his  action  by  procur- 
ing the  necessary  affidavits  in  the  foreclosure,  to  be  made 
subsequently  to  the  commencement  of  the  action  in  eject- 
ment.*'^ 

The  filing  and  recording  of  the  affidavits  is  not  necessary, 
however,  as  against  the  mortgagor's  equity  of  redemption, 
which  is  effectually  barred  and  foreclosed  by  the  sale,  not- 
withstanding the  fact  that  the  affidavit  of  the  publication  of 
the  notice  of  sale,  and  of  the  posting  thereof,  may  not  have 
been  made  and  recorded  as  required  by  statute,  until  fifteen 
years  thereafter,  and  after  an  action  to  redeem  was  brought. 
Neither  will  the  equitable  title  of  the  purchaser  be  defeated 
by  a  claim  to  redeem." 

§  959.  Contradicting  affidavits. — The  affidavits  required 
to  be  filed  in  a  foreclosure  by  advertisement,  may  be  contro- 
ls Cowrfrey  V.  Turner,  85  Hun  68  N.  Y.  153,  164;  Howard  v. 
(N.  Y.)  451,  66  N.  Y.  S.  R.  207,  32  Hatch,  29  Barb.  (N.  Y.)  297;  Os- 
N.  Y.  Supp.  889.  born  v.  Merwin,  12  Hun  (N.  Y.) 
^^  Mowry  v.  Sanborn,  65  N.  Y.  332;  Frink  v.  Thompson,  4  Lans. 
581,  reversing  62  Barb.  (N.  Y.)  223.  (N.  Y.)  489. 

For  further  decisions,  see  68  N.  Y.  ^^  Tuthill  v.  Tracy,  31  N.  Y.  157; 

153,  reversing  7  Hun   (N.  Y.)  380,  Bryan  v.  Butts,  27   Barb.    (N.  Y.) 

and  72  N.  Y.  534,  reversing  11  Hun  503;  Layman  v.   Whiting,  20  Barb. 

(N.   Y.)    545.     It  is  held  in  some  (N.  Y.)  559;  Cohoes  Co.  v.  Goss,  13 

cases,  however,  that  the  recording  Barb.    (N.  Y.)    137;  Arnot  v.  Mc- 

of  the  affidavits  of  publication  and  Clure,  4  Den.   (N.  Y.)   41. 

posting  is  not  necessary  to  perfect  **  Tuthill  v.  Tracy,  31  N.  Y.  157. 
the  title.     See  Mowry  v.  Sanborn, 


1342  MORTGAGE    FORECLOSURES.  [§    960 

verted  by  the  mortgagor,  or  by  any  person  claiming  under 
him;  and  any  of  the  facts  stated  therein  may  be  disproved  by 
any  person  except  the  mortgagee  and  those  claiming  under 
him.*^ 

Such  affidavits,  being  made  ex  parte,  are  only  prima  facie 
evidence  of  the  facts  stated  therein;^"  they  are  merely  evi- 
dence of  the  exercise  of  the  power  of  sale  as  prescribed  by  stat- 
ute for  the  benefit  of  the  purchaser,  and  he  may  show  facts 
necessary  to  correct  any  errors  therein. ^^  But  the  mortgagee 
and  those  claiming  under  him  in  an  action  to  recover  pos- 
session of  the  premises,  must  stand  on  the  affidavits,  as  they 
existed  at  the  time  of  the  action. ^^ 

§  960.  Effect  of  affidavits. — The  affidavits  required  in  a 
foreclosure  by  advertisement  are  simply  evidence  of  the 
completion  of  the  proceedings,  and  are  for  the  benefit  of 
the  purchaser  at  the  sale,  and  may  be  made  at  any  time  after 
the  sale  has  been  completed.*^  The  mortgagor  has  a  right  to 
retain  possession  of  the  mortgaged  premises  under  foreclosure 
by  advertisement,  however,  until  the  foreclosure  is  perfected 
by  the  making  and  filing  of  the  affidavits  ^*  just  as  under  a 

*9  Sherman   v.    Willett,  42   N.  Y.  mencement  of  an  action  to  redeem, 

146;  Mowry  v.  Sanborn,  62   Barb.  are  material  to  their  maintenance, 

(N.  Y.)   223,  7  Hun    (N.  Y.)   380.  or  that  such  affidavits  may  be  made 

See  Arnot  v.  McClure,  4  Den.   (N.  even    after    the   commencement    of 

Y.)  41.  such  an  action.    Bunce  v.  Reed,  16 

^^ Story   V.    Hamilton,   86    N.    Y.  Barb.    (N.   Y.)   347.     See  Story  v. 

428,  affg  20  Hun   (N.  Y.)   133.  Hamilton,  86  N.  Y.  428;  Mowry  v. 

^"^  Story   V.    Hamilton,   86    N.    Y.  Sanborn,  68  N.  Y.  153. 

428.  53  Tuthill  V.  Tracy,  31  N.  Y.  157. 

^^ Dwight    V.    Phillips,    48    Barb.  See  Osborn  v.  Merwin,  12  Hun  (N. 

(N.  Y.)   116;  Mowry  v.  Sanborn,  7  Y.)     ZZ2;    Hawley    v.    Bennett,    5 

Hun   (N.  Y.)  380.     But  see  Bryan  Paige  Ch.  (N.  Y.)   104. 

V.  Butts,  27  Barb.   (N.  Y.  )503.     It  ^^  Bryan   v.   Butts,  27   Barb.    (N. 

is  thought  by  some  that,  inasmuch  Y.)    503;    Layman   v.    Whiting,   20 

as   the   affidavits   may   be   made   at  Barb.    (N.  Y.)    559;  Arnot  v.  Mc- 

any  time  after  the  sale,  there  is  no  Chirc,   4    Den.    (N.    Y.)    41.      See 

reason  why  they  may  not  be  cor-  Tuthill    v.    Tracy.    31    N.    Y.    157; 

rected  at  any  time,  if  such  correc-  Howard  v.  Hatch,  29  Barb.  (N.  Y.) 

tions,  when  made  prior  to  the  com-  297. 


§    961]  STATUTORY    FORECLOSURE.  1343 

judgment  of  foreclosure  in  an  equitable  action  he  is  entitled 
to  retain  possession  until  the  execution  and  delivery  of  the 
deed  by  the  officer  making  the  sale." 

The  affidavits  required  by  the  statute  are  instruments  of 
conveyance  as  well  as  evidence  authorizing  a  conveyance, 
and  the  title  does  not  pass  until  they  are  completed  and  filed. *^ 
But  the  more  recent  cases  hold,  that  the  recording  of  such 
affidavits  is  not  necessary  to  pass  the  title  to  the  purchaser, 
because  the  statute  does  not  make  recording  essential,  and  it 
seems  that  the  affidavits  themselves  are  made  by  the  statute 
as  good  evidence  of  the  facts  as  the  record  itself." 

§  961.  Necessity  for  deed. — Under  the  New  York  Code 
of  Civil  Procedure,**  "the  purchaser  of  the  mortgaged  prem- 
ises, upon  a  sale  conducted  as  prescribed  by  this  statute,  ob- 
tains title  thereto,  against  all  persons  bound  by  the  sale,  with- 
out the  execution  of  a  conveyance.  Except  where  he  is  the 
person  authorized  to  execute  the  power  of  sale,  such  a  pur- 
chaser also  obtains  title,  in  like  manner,  upon  payment  of  the 
purchase  money,  and  compliance  with  the  other  terms  of  sale, 
if  any,  without  the  filing  and  recording  of  the  affidavits,  as 
prescribed  by  this  statute.  But  he  is  not  bound  to  pay  the  pur- 
chase money,  until  the  affidavits  of  foreclosure,  with  respect 
to  the  property  purchased  by  him,  are  filed,  or  delivered,  or 
tendered  to  him  for  filing." 

It  is  said  by  the  supreme  court  of  Wisconsin,  in  the  case 
of  Nan  V.  Burnette,*^  that  under  the  statutes  of  that  state,®" 
no  deed  is  required  upon  the  sale  of  mortgaged  premises  under 
a  power  in  the  mortgage,  when  the  purchaser  is  the  assignee 
and  holder  of  the  foreclosed  mortgage. 

^^  Mitchell  V.  Barf  left,  51   N.  Y.  153,    164;    Howard    v.    Hatch,    29 

447.     See  ante,  §  718.  Barb.  (N.  Y.)  297;  Osborn  v.  Mer- 

^  Bryan   v.   Butts,  27   Barb.    (N.  win,   12  Hun    (N.   Y.)    332;   Brink 

Y.)    503;    Layman   v.    Whiting,   20  v.  Thompson.  4  Lans.   (N.  Y.)  489. 

Barb.    (N.  Y.)   559;  Arnot  v.  Mc-  58  n.  Y.  Code  Civ.  Proc.  §  2400. 

Clure,  4  Den.  (N.  Y.)  41.  5979  Wis.  664.  48  N.  W.  649. 

iTMowry   v.   Sanborn,  68   N.   Y.  60  Wis.  Rev.  Stat.  1878,  §  3541. 


1344  MORTGAGE    FORECLOSURES.  [§    962 

Where  a  deed  is  required  and  given  on  sale  in  foreclosure 
by  advertisement  under  power  in  a  trust  deed  or  mortgage, 
it  is  valid  without  a  recital  by  the  trustee  in  his  deed  to  the 
purchaser  of  the  exact  date  of  the  sale.®^  It  has  been  said  that 
there  is  a  sufficient  description  and  identification  of  the 
grantor  in  a  deed  to  the  purchaser  at  trustee's  sale  under  a 
trust  deed,  where,  although  the  trustee's  name  is  not  mentioned 
in  the  body  of  his  deed,  the  recitals  thereof  furnish  the  means 
of  clearly  identifying  him.®^  The  supreme  court  of  Michigan, 
in  the  case  of  Cook  v.  Foster,^^  say  that  such  a  deed  is  not 
void  because  the  deed  is  executed  by  the  undersheriff,  and 
acknowledged  before  the  sheriff  in  the  capacity  of  a  notary 
public,  under  the  statute  of  that  state,®*  providing  that  the 
sale  may  be  made  by  the  undersheriff  among  others,  and  the 
deed  executed  by  the  officer  or  person  making  the  sale. 

§  962.  Obtaining  possession  by  purchaser — Summary 
proceedings. — The  New  York  Code  provides,®^  that  where 
property  has  been  duly  sold  upon  the  foreclosure,  by  the  pro- 
ceedings above  prescribed,  of  a  mortgage  executed  by  the 
party  in  possession,  or  by  a  person  under  whom  he  claims,  and 
the  title  has  been  duly  perfected,  that  notice  to  quit  the.  same 
may  be  given,  and  he  may  be  removed  therefrom  in  the 
manner  prescribed  by  statute  for  summary  ejectment.  In  such 
a  proceeding,  it  is  thought  to  be  sufficient  to  produce  before  the 
court  the  record  of  the  proceedings  on  foreclosure.^^ 

If  the  proceedings  in  the  foreclosure  were  regular,  the  valid- 
ity of  the  mortgage,  or  the  motives  of  the  applicant,  cannot 
be  inquired  into  in  summary  proceedings ;  but  it  is  the  duty 
of  the  court  to  examine  the  evidence  of  the  foreclosure  and 

61  Jones  V.  Hagler,  95  Ala.  529,  10  65  New  York  Code  Civ.  Pro- 
So.  345.  cedure,  §  2232. 

62  Jones  V.  Hagler,  95  Ala.  529,  10  66  People  ex  rel.  Bridenbecker  v 
So.  345.  Prescott,  3  Hun  (N.  Y.)  419,  424; 

63  96  Mich.  610,  55  N.  W.  1019.  Brown  v.  Belts,  13  Wend.  (N.  Y.) 

64  2    How.    Mich.    Stat.    §§    8501,  32. 
8505. 


§  962]  STATUTORY  FORECLOSURE.  1345 

to  ascertain  whether  the  papers  upon  their  face  confer  a  right 
to  the  possession  of  the  property." 

The  supreme  judicial  court  of  Massachusetts,  in  the  case  of 
North  Brookfield  Savings  Bank  v.  Flanders,^^  say  that  a  mort- 
gagee in  a  mortgage  containing  a  power  of  sale,  and  giving 
him  authority  to  purchase  at  a  sale  thereunder,  who  procures 
another  to  become  the  purchaser  as  his  agent,  and  simulta- 
neously to  execute  a  quitclaim  deed  of  the  lands  to  him,  may 
maintain  an  action  under  the  statute  of  that  state,®^  to  recover 
the  possession,  providing  that  on  such  sale  under  a  power  in 
the  mortgage  is  entitled  to  the  premises,  may  recover  posses- 
sion thereof  by  summary  proceedings  as  therein  provided. 
The  court  of  civil  appeals  of  Texas,  in  the  case  of  Meyer  v. 
Orynski,'"  say  that  a  purchaser  of  lands  at  a  sale  under  a  trust 
deed  is  entitled  to  a  writ  of  sequestration,  and  to  the  seizure 
thereunder  of  the  lands,  w^here  they  are  withheld  from  him  by 
an  assignee  for  creditors  of  the  mortgagor,  whose  assignment 
was  executed  after  the  execution  of  the  trust  deed. 

^T  Getting  v.  Mohr.  34  Hun    (N.       See    also    Allen    v.    Chapman,    168 
Y.)  340.  Mas.  442.  47  N.  E.  124. 

68  161  Mass.  335,  Z7  N.  E.  307.  70  25  S.  W.  655. 

«»Mass.    Pub.    Stat.   c.    175,   §    1. 
Mortg.  Vol.  II.— 8S 


CHAPTER  XXXV. 

STRICT  FORECLOSURE. 

§  963.  Nature   of   the    remedy. 

§  964.  Effect  of  a  strict  foreclosure. 

§  965.  A  severe  remedy. 

§  966.  In   what   states   allowed. 

§  967.  In   what    states   not   allowed. 

§  968.  Illinois  doctrine  and  practice. 

§  969.  New  York  doctrine  and  practice. 

§  970.  Has  strict  foreclosure  been  abolished  by  the  Code  in  New  York? 

§  971.  Jurisdiction  of  court  to  decree  a  strict  foreclosure  in  another  state. 

§  972.  Parties  to  a  strict  foreclosure. 

§  973.  Who   may   maintain   a   strict   foreclosure. 

§  974.  Strict  foreclosure  against  infants. 

§  975.  Pleadings  in  a  strict  foreclosure. 

§  976.  Judgment  in  a  strict  foreclosure. 

§  977.  Time  for  redemption. 

§  978.  Setting  aside  and  opening  strict  foreclosure. 

§  963.  Nature  of  the  remedy. — The  remedy  of  strict 
foreclosure,  which  operates  to  transfer  to  the  mortgagee  the 
entire  mortgaged  estate,  is  regarded  with  disfavor  by  the 
courts  of  this  country.  This  method  of  foreclosure  had  its 
origin  at  a  time  when  a  mortgage  was  regarded  as  a  condi- 
tional sale  of  the  land,  rather  than  as  a  security  for  the  pay- 
ment of  a  debt.  Chancellor  Jones  has  said,  in  Lansing  v.  Goe- 
let :  '^  "In  early  times  when  a  mortgage  was  still  regarded 
as  a  conditional  sale  of  the  land,  rather  than  as  a  mere  security 
for  the  payment  of  a  debt,  an  adherence  to  the  form  of  the 
condition  in  the  application  of  the  remedy  of  the  mortgagee, 
was  natural;  and  it  would  necessarily  lead  to  the  decree  of 
strict   foreclosure,   requiring  the  mortgagor  to  perform  the 

"9  Cow.  (N.  Y.)  346,  352. 

1346 


§    964]  STRICT    FORECLOSURE.  1347 

condition  by  paying  the  debt  within  a  given  time,  to  be  limited 
by  the  court,  or  be  forever  barred  from  his  right  to  redeem." 

This  method  of  foreclosure  proceeds  upon  the  theory  that 
the  mortgagee  or  purchaser  has  acquired  the  legal  title  and 
obtained  possession  of  the  estate,  but  that  the  right  and  equity 
of  redemption  have  not  been  cut  off  or  barred,"^  and  that  the 
legal  title  of  the  mortgagor  having  been  acquired,  the  remedy 
by  strict  foreclosure  is  proper  to  cut  off  the  right  and  equity 
of  junior  incumbrancers  to  redeem.'^ 

With  the  establishment  of  the  doctrine  now  prevailing  in 
this  country,  that  a  mortgage  is  a  mere  security  for  the  pay- 
ment of  a  debt,  a  breach  of  the  condition  for  payment  merely 
giving  to  the  mortgagee  a  right  to  proceed  against  the  security, 
the  natural  remedy  for  such  breach  was  to  sell  the  property 
and  apply  the  proceeds  thereof  to  the  payment  of  the  mort- 
gage debt.  The  advantages  to  the  debtor  of  a  sale  of  the 
property,  instead  of  a  strict  foreclosure,  were  much  discussed 
before  the  practice  of  ordering  a  sale  was  adopted,  and  be- 
came the  almost  universal  remedy  as  it  now  is.'* 

§  964.  Effect  of  a  strict  foreclosure. — The  effect  of  a 
foreclosure,  is  to  transfer  to  the  mortgagee  the  land  for  the 
debt.'*    The  deed,  made  absolute  by  foreclosure,  continues  be- 

"^^  Jefferson  v.  Coleman,  110  Ind.  '^^  Lansing  v.  Goelet,  9  Cow.   (N. 

515,  11  N.  E.  465.  Y.)  346,  352.    In  this  case  the  court 

"^^ Jefferson  v.  Coleman.  110  Ind.  say:  "In  a  country  where  the  laws 

515,  11  N.  E.  465.  do  not  permit  the  sale  of  real  estate 

'*  See   Bolles  v.  Duff,  43   N.   Y.  by  execution  at  law,  for  the  satis- 

469,    10   Abb.    (N.    Y.)    Pr.    N.    S.  faction    of    debts,    there    might    be 

399,  41  How.    (N.  Y.)    Pr.  355,  55  some    apology    for    preferring    the 

Barb.  (N.  Y.)  313,  580,  7  Abb.  (N  foreclosure    to    the    sale.      But    in 

V.)  Pr.  N.  S.  385,  38  How.  (N.  Y.)  modern  times,  when  the  more  liber- 

Pr.  492,  505;  Lansing  v.  Goelet,  9  al  principle  has  gained  the  ascend- 

Cow.   (N.  Y.)  346;  Ross  v.  Board-  ency,  which  deals  with  the  mortgage 

man,   22   Hun    (N.    Y.)    527,    531;  as  being,  in  its  substance  and  legal 

Mills  V.  Dennis,  3  Johns.  Ch.    (N.  effect,  a  mere  security  for  the  pay- 

Y.)    367;    Mussina    v.    Bartlett.    8  ment  of  the  debt;  and  in  this  state, 

Port.  (Ala.)  277;  Williams'  Case,  3  where  the  lands  of  the  debtor  are 

Bland.  Ch.  (Md.)  186,  193;  Wilder  subjected  to  sale   for  the  satisfac- 

V.  Haughey,  21  Minn.  101.  tion    of    his    debts,    it    would    be 


1348 


MORTGAGE    FORECLOSURES, 


[§    964 


tween  its  parties  to  be  a  grant  of  the  land  on  which  it  is  fore- 
closed.'® A  strict  foreclosure  merely  extinguishes  the  right 
of  redemption."  It  does  not  become  operati\'e  as  a  satisfac- 
tion of  the  debt/^  until  the  time  fixed  by  the  decree  for  the  re- 
demption of  the  premises  has  expired.'^ 

It  has  been  said,  that  the  debt  will  not  be  extinguished  by 
such  a  foreclosure,^"  unless  the  property  is  of  sufficient  value 
to  satisfy  it,^^  but  that  the  foreclosure  simply  operates  as  a 
payment  pro  tanto}^     In  this  form  of  foreclosure  there  can 


strange,  indeed,  that  a  court  of 
•equity  should  be  without  the  power 
to  decree  a  sale  of  the  mortgaged 
premises  for  the  satisfaction  of  the 
debt,  and  the  mortgagee  confined 
to  a  decree  for  a  strict  foreclosure." 

"^^  Fletcher  v.  Chamberlin,  61  N. 
H.  438. 

T>  Brainard  v.  Cooper,  10  N.  Y. 
359;  Bradley  v.  Chester  Valley  R. 
Co.  36  Pa.  St.  150. 

In  the  case  of  Champion  v. 
Hinkle  (45  N.  J.  Eq.  (18  Stew.) 
162,  16  Atl.  701,  12  New  Jersey  L. 
J.  87),  the  New  Jersey  court  of 
chancery  say:  At  common  law  in  a 
strict  foreclosure  suit  the  decree 
simply  cut  off  the  equity  of  re- 
demption and  foreclosed  the  mort- 
gagor from  redeeming  the  estate 
by  payment  of  the  mortgage  debt. 
Thereafter  the  mortgagee  was  in 
as  of  the  estate  granted  and  con- 
veyed by  the  mortgage,  discharged 
from  the  condition  of  defeasance, 
and  he  held  the  estate  as  if  the  orig- 
inal conveyance  had  been  absolute. 

'8  Spencer  v.  Harford,  4  Wend. 
(N.  Y.)  381,  384. 

^^  Peck's  Appeal,  31  Conn.  215; 
Edgcrton  v.  Young,  43  111.  464; 
Fletcher  v.  Chamberlain,  61  N.  H. 
438. 


^^Vansant  v.  Allmon,  23  111.  30; 
Nunemacher  v.  Ingle,  20  Ind.  135 ; 
Brown  v.  Wernwag,  4  Blackf. 
(Ind.)  1 ;  Germania  Building  Assoc. 
V.  Neill,  93  Pa.  St.  322 ;  Devereaux 
V.  Fairbanks,  52  Vt.  587 ;  Smith  v. 
Lamb,  1  Vt.  395 ;  Strong  v.  Strong, 
2  Aik.   (Vt.)  Z7i. 

^'^  DeGrant  v.  DeGraham,  1  N.  Y. 
Leg.  Obs.  75;  Morgan  v.  Plumb,  9 
Wend.  (N.  Y.)  287.  See  Lansing 
V.  Goelet,  9  Cow.  (N.  Y.)  346,  352; 
Globe  Ins.  Co.  v.  Lansing,  5  Cow. 
(N.  Y.)  380,  15  Am.  Dec.  274; 
Charter  v.  Stevens,  3  Den.  (N.  Y.) 
35,  45  Am.  Dec.  444;  Craig  v.  Tap- 
pen,  2  Sandf.  Ch.  (N.  Y.)  78;  Case 
V.  Boughton,  11  Wend.  (N.  Y.) 
106;  Spencer  v.  Harford,  4  Wend. 
(N.  Y.)  381,  384;  Hatch  v.  White, 
2  Gall.  C.  C.  152.  It  seems  that 
formerly  in  Connecticut  a  strict 
foreclosure  operated  to  extinguish 
the  debt  without  regard  to  the  value 
of  the  property.  Swift  v.  Edson, 
5  Conn.  531 ;  Derby  Bank  v.  Lon- 
don, 3  Conn.  62;  Fitch  v.  Coit,  1 
Root  (Conn.)  266;  McEven  v. 
Welles.  1  Root  (Conn.)  202,  1  Am. 
Dec.  39. 

82  Paris  V.  Huelett.  26  Vt.  308. 


966] 


STRICT    FORECLOSURE. 


1349 


be  no  judgment  for  deficiency ;  ^^  to  recover  a  deficiency,  the 
mortgagee  will  be  relegated  to  an  action  at  law  upon  the  debt. 
The  supreme  court  of  Indiana,  in  the  case  of  Jefferson  v. 
Coleman,^*  say  that  a  person  holding  the  legal  title  to  an  un- 
divided third  in  property  sold  under  a  foreclosure  to  which 
he  was  not  a  party  cannot  be  deprived  of  her  interest  by  a 
strict  foreclosure. 

§  965.  A  severe  remedy. — Strict  foreclosure  is  gener- 
ally regarded  in  courts  of  equity  as  a  severe  remedy.  It  is 
now  rarely  pursued  or  allowed,  except  in  cases  where  a  fore- 
closure by  an  equitable  action  has  been  defectively  conducted 
and  some  judgment  creditor,  or  other  subsequent  lienor  or  in- 
cumbrancer, not  having  been  made  a  party  to  the  action,  has 
a  right  to  redeem.  As  to  him,  a  strict  foreclosure  is  proper 
and  effective,  and,  furthermore,  the  quickest  and  least  expen- 
sive procedure  that  can  be  pursued.®* 

§966.  In  what  states  allowed. — Strict  foreclosure  is 
the  usual  procedure  for  enforcing  mortgages  in  Connecti- 
cut,®^ and  in  Vermont;"  where  the  interests  of  the  parties 
seem   to    require    it,    it    is   also   allowed   in   Alabama,®®    IWi- 


83  Bean  v.  Whitcomb,  13  Wis.  431. 

8M10  Ind.  515,  11  N.  E.  465. 

^^Bolles  V.  Duff,  43  N.  Y.  469, 
474. 

86  Palmer  v.  Mead,  7  Conn.  149, 
152;  Conn.  Gen.  Stats.  358. 

^T  Peris  V.  Hulett,  26  Vt.  308. 
See  Sprague  v.  Rockwell,  51  Vt. 
401. 

88  Where  the  parties  to  the  mort- 
gage have  provided  for  it,  and  it  is 
for  their  interests.  Hunt  v.  Lezvin, 
4  Stew.  &  P.  (Ala.)  138.  It  is 
said  to  be  the  proper  remedy,  for 
the  purpose  of  cutting  off  inter- 
mediate incumbrances  and  Hens, 
where  the  mortgagee  has  acquired 


title  to  the  equity  of  redemption 
and  it  is  worth  no  more  than  the 
debt.  Hitchcock  v.  Bank  of  Penn- 
sylvania, 7  Ala.  386. 

It  is  said  by  the  Supreme  Court 
of  Alabama,  in  the  case  of  Grandin 
V.  Hart,  80  Ala.  116,  that  the  mort- 
gage having  been  given  to  secure 
the  payment  of  a  note  which  the 
mortgagor  had  assigned  to  the 
mortgagee,  and  containing  a  stipula- 
tion that  the  latter  should  not  "in- 
stitute any  proceeding  to  foreclose," 
until  the  maker  and  indorser  had 
been  sued  to  insolvency,  the  right 
to  take  possession  is  postponed  until 
the  happening  of  this  contingency ; 


1350 


MORTGAGE    FORECLOSURES. 


[§  966 


nois,''  Iowa,'°  Louisiana,^^  Maine,'^  Massachusetts,''  Michi- 
gan,®* Minnesota,®*  New  Jersey,®^  North  CaroHna,®'  and  Wis- 


and  the  mortgagee  cannot  maintain 
ejectment  before  that  time. 

*3  Where  the  premises  are  not 
worth  the  face  of  the  mortgage, 
and  the  mortgagor  is  insolvent. 
Stephens  v.  Bicknell,  27  111.  444,  81 
Am.  Dec.  242 ;  also  where  the  inter- 
ests of  both  parties  require  it.  See 
Johnson  v.  Donnell,  15  111.  97; 
Boycr  v.  Boyer,  89  111.  447,  8  Cent. 
L.  J.  213.    See  post,  §  968. 

9"  Where  a  junior  lienholder  has 
not  been  made  a  party  to  a  suit  to 
foreclose  a  prior  mortgage,  the  pur- 
chaser at  the  foreclosure  sale  may 
require  such  lienholder  to  exercise 
his  right  of  redemption,  or,  in  de- 
fault thereof,  to  be  foreclosed  and 
barred  of  all  his  rights.  Shaw  v. 
Heisey,  48  Iowa,  468. 

91  Levy  V.  Lake,  43  La.  An.  1034, 
10  So.  375. 

92  Williams  v.  Hilton,  35  Me.  547, 
58  Am.  Dec.  729;  Snow  v.  Pressey, 
82  Me.  552,  20  Atl.  78. 

Where  mortgage  covers  two 
parcels  of  land. — In  those  cases 
where  the  mortgage  covers  two  dis- 
tinct parcels  of  real  estate,  the 
mortgagee,  after  condition  is 
broken,  may  maintain  a  real  action 
to  recover  possession  of  but  one 
parcel.  If  a  conditional  judgment  is 
rendered  in  such  an  action,  it  must 
be  for  the  full  amount  due  on  the 
mortgage  debt.  Phillips  v.  Crippen 
(Me.)  5  Atl.  69. 

93  Norton  v.  Palmer,  142  Mass. 
433;  Thompson  v.  Tappan,  139 
Mass.  506;  Thompson  v.  Kenyan. 
100  Mass.  108;  Green  v.  Kemp,  13 
Mass.  515,  7  Am.  Dec.  169;  Pome- 
roy  V.  Winship,  12  Mass.  514,  7  Am. 


Dec.  91 ;  Shepard  v.  Richardson, 
145  Mass.  32,  11  N.  E.  738. 

The  supreme  judicial  court  of 
Massachusetts,  in  the  case  of  Shep- 
ard V.  Richardson,  145  Mass.  32,  11 
N.  E.  738,  hold  that  a  power  of 
sale  and  the  intervention  of  trustees 
do  not  necessarily  take  from  the 
court  the  power  to  decree  a  strict 
foreclosure. 

^^Dohm  V.  Haskin,  88  Mich.  144, 

50  N.  W.  108. 

95  Backus  v.  Burke,  48  Minn.  260, 

51  N.  W.  284;  Burke  v.  Baldwin,  51 
Minn.  181;  53  N.  W.  460;  Burke  v. 
Backus,  51  Minn.  174,  53  N.  W. 
458. 

Keyword  v.  Judd,  4  Minn.  483, 
but  the  courts  of  this  state  are  ad- 
verse to  this  method  of  foreclosure, 
and  will  in  most  cases  confine  the 
mortgagee  to  a  sale  of  the  prop- 
erty. See  Wilder  v.  Haughey,  21 
Minn.  101. 

96  See  Pettingil  v.  Hubbell  (N.  J. 
Ch.),  32  Atl.  76;  Lockard  v.  Hen- 
drickson  (N.  J.  Ch.)  25  Atl.  512; 
Champion  v.  Hinkle,  45  N.  J.  Eq. 
(18  Stew.)  162,  16  Atl.  701,  12  N. 
J.  L.  J.  87. 

In  New  Jersey  it  is  held,  in  the 
case  of  Leeds  v.  Gifford,  41  N.  J. 
Eq.  49,  5  Atl.  759,  that  a  mortgagee 
may  take  possession  of  the  prem- 
ises to  obtain  payment  of  his  debt ; 
and  a  payment  so  obtained  is  sub- 
ject, in  respect  to  its  appropriation, 
to  the  legal  rules  which  govern  the 
appropriation  of  other  payments. 

97  In  this  state  foreclosure  was 
formerly  made  without  a  sale.  See 
Fleming  v.  Sitton,  1  Dev.  &  B.  (N. 
C.)    Eq.   621;    subsequently     it    be- 


967] 


STRICT    FORECLOSURE. 


1351 


98 


consin.''"  This  method  of  foreclosure  has  sometimes  been 
allowed  in  Kentucky,^^  Nebraska,^  New  York,^  Ohio,'  Oregon* 
and  West  Virginia.' 


§  967.  In    what    states    not    allowed. — In    Colorado,^ 

Nebraska  and  many  of  the  western  states  a  mortgage  cannot 
be  foreclosed  by  strict  foreclosure,  but  only  by  an  action 
brought  for  that  purpose,  and  by  judgment  and  decree.' 

In  California,  it  is  said  that  the  foreclosure  of  a  mortgage 
in  the  English  sense,  by  which  the  mortgagor,  after  default, 


came  the  practice  in  all  instances  to 
direct  a  sale  on  application,  but  if 
no  application  was  made,  to  decree 
a  strict  foreclosure.  See  Green  v. 
Crockett,  2  Dev.  &  B.  (N.  C.)  Eq. 
390. 

98  Sage  v.  McLaughlin,  34  Wis. 
550;  Bean  v.  Whitcomb,  13  Wis. 
431.  For  the  parties  consent,  see 
also  Bresnahan  v.  Bresnalian,  46 
Wis.  385. 

The  owner  of  the  legal  title  may, 
with  propriety,  maintain  a  pro- 
ceeding in  the  nature  of  a  strict 
foreclosure,  to  bar  the  interest  of 
the  persons  who  have  a  mere  lien 
upon,  or  right  of  redemption  in, 
the  land.  Bresnahan  v.  Bresnahan, 
46  Wis.  385,  1  N.  W.  39. 

99  But  the  Kentucky  Code  of  Pro- 
cedure now  provides,  that  there 
shall  be  a  sale  in  all  cases ;  Ky. 
Code  of  1867,  §  404,  Code  of  1876,  § 
375.  See  Can f man  v.  Sayre,  2  B. 
Mon.   (Ky.)  202. 

1  Soutli  Omaha  Savings  Bank  v. 
Levy,  1  Neb.  (Unof.)  255,  95  N. 
W.  603.  See  Fiske  v.  Mayhew,  90 
Neb.  196,  133  N.  W.  195. 

Under  the  territorial  statutes  pro- 
viding for  a  sale,  it  was  held  that 
a  strict  foreclosure  might  be  de- 
creed.    Woods  V.  Shields.    1    Neb. 


453,  but  at  present,  it  seems  that  the 
remedy  is  confined  to  a  sale  of  the 
premises.  See  Kyger  v.  Ryley,  2 
Neb.  20. 

2  Bollcs  V.  Duff,  43  N.  Y.  469,  10 
Abb.  (N.  Y.)  Pr.  N.  S.  399,  414,  41 
How.  (N.  Y.)  Pr.  355;  Kendall  v. 
Treadwell,  5  Abb.  (N.  Y.)  Pr.  16, 
14  How.  (N.  Y.)  Pr.  165;  Blanco  v. 
Foote,  32  Barb.  (N.  Y.)  535; 
Franklyn  v.  Hayzvard,  61  How.  (N. 
Y.)  Pr.  46;  Ross  v.  Boardman,  22 
Hun  (N.  Y.)  531;  Benedict  v.  Gil- 
man,  4  Paige  Ch.  (N.  Y.)  58.  But 
it  is  thought  that  strict  foreclosure 
has  been  abolished  in  New  York. 
See  N.  Y.  Code  Civ.  Proc.  §  1626. 
See  post,  §  969. 

3  Where  two-thirds  of  the  value 
of  the  mortgaged  premises  did  not 
exceed  the  debt.  See  Higgins  v. 
West,  5  Ohio,  554,  Anon.  1  Ohio, 
235. 

^  Flanagan  Estate  v.  Great  Cen- 
tral Land  Co.  45  Or.  335,  77  Pac. 
485. 

5  Froidevaux  v.  Jordan,  64  W. 
Va.  388,  131  Am.  St.  Rep.  911,  62 
S.  E.  686. 

^Nevin  V.  Lulu  &  W .Silver Min. 
Co.  10  Colo.  357,  15  Pac.  611. 

'''  Nevin  v.  Lulu  &  W.  Min.  Co. 
10  Colo.  357,  15  Pac.  611. 


1352 


MORTGAGE    FORECLOSURES. 


[§  967 


is  called  upon  to  pay  the  debt  by  a  specified  day,  or  to  be  for- 
ever barred  of  the  equity  of  redemption,  is  unknown  to  our 
laws.^  In  Gamut  v.  Gregg.^  it  is  said  that  a  strict  foreclosure 
has  no  place  in  the  Iowa  system  of  procedure.  Strict  foreclos- 
ure in  the   English   sense  of   the  phrase   is  not  allowed   in 


^McMillan  v.  Richards,  9  Cal. 
365,  411,  70  Am.  Dec.  655.  See 
Goodcnow  v.  Ewer,  16  Cal.  461,  467, 
76  Am.  Dec.  540.  In  this  case  the 
court  say :  "In  McMillan  v.  Rich- 
ards, supra,  we  had  occasion  to 
consider  the  subject  at  great  length, 
and  to  observe  upon  the  diversity 
existing  in  the  adjudged  cases.  We 
there  asserted  what  had  previously 
been  held  in  repeated  instances,  the 
equitable  doctrine  as  the  true  doc- 
trine respecting  mortgages,  and 
have  ever  since  applied  it  under  all 
circumstances.  Johnson  v.  Sher- 
man, 15  Cal.  287,  76  Am.  Dec.  481 ; 
Clark  V.  Baker,  14  Cal.  612,  76  Am. 
Dec.  449;  Koch  v.  Briggs,  14  Cal. 
256,  72,  Am.  Dec.  651;  Haffley  v. 
Mater,  13  Cal.  13;  Nagle  v.  Macy, 
9  Cal..  426.  When,  therefore,  a 
mortgage  is  here  executed,  the 
estate  remains  in  the  mortgagor, 
and  a  mere  lien  or  incumbrance 
upon  the  premises  is  created.  The 
proceedings  for  a  foreclosure  of  the 
equity  of  redemption,  as  those 
terms  are  understood  where  the 
common  law  view  of  mortgages  is 
maintained,  is  unknown  to  our 
system,  so  far,  at  least,  as  the  own- 
er of  the  estate  is  concerned.  The 
mortgagee  can  here,  in  no  case,  be- 
come the  owner  of  the  mortgaged 
premises,  except  by  purchase  upon 
a  sale  under  a  judicial  decree  con- 
summated by  conveyance.  Pro- 
ceedings in  the  nature  of  a  suit  to 


foreclosure  an  equity  of  redemp- 
tion, held  by  a  subsequent  incum- 
brancer, may  undoubtedly  be  main- 
tained by  a  purchaser  under  the  de- 
cree, where  such  incumbrancer  was 
not  made  a  party  to  the  original 
suit  to  enforce  the  mortgage.  Such 
incumbrancer  may  be  called  upon 
to  assert  his  right  by  virtue  of  his 
lien,  and  his  equity  of  redemption,, 
extending  to  the  period  provided  by 
the  statute  of  limitations,  be  thus 
reduced  to  the  statutory  period  of 
six  months.  But  the  owner  of  the 
mortgaged  premises,  where  a  power 
of  sale  is  not  embraced  in  the  mort- 
gage, cannot,  under  any  circum- 
stances, be  cut  off  from  his  estate, 
except  by  sale  in  pursuance  of  the 
decree  of  the  court.  See  Mont- 
gomery v.  Tutt,  11  Cal.  190;  Whit- 
ney V.  Higgins,  10  Cal.  547,  70  Am. 
Dec.  748,  Cal.  Practice  Act,  §  260. 
To  give  validity  to  such  decree,  the 
owner  must  be  before  the  court 
when  it  is  rendered.  No  rights 
which  he  possesses  can  otherwise  be 
affected,  and  any  direction  for  their 
sale  would  be  unavailing  for  any 
purpose."  See  McCaughey  V.  Mc- 
Duffie,  74  Pac.  751  (Cal.) 

9  37  Iowa,  573.  It  seems,  how- 
ever, that  strict  foreclosure  will  be 
allowed  where  a  junior  lienholder 
has  not  been  made  a  party  to  the 
foreclosure  of  a  prior  mortgage. 
See  Shaw  1.  Heisey,  48  Iowa,  468. 


968] 


STRICT     FORECLOSURE. 


1353 


Florida,^"  Indiana,"  Kansas, ^^  Missouri/^  Pennsylvania/*  or 
Tennessee.^*  In  Indiana,  however,  a  proceeding  in  the  nature 
of  a  strict  foreclosure  may  be  maintained  by  one  who  holds 
the  legal  title  to  the  premises,  as  against  persons  who  have  a 
mere  lien  upon  or  a  right  of  redemption  in  such  premises ;  ^® 
but  such  a  remedy  is  not  allowable  by  a  mortgagee  as  against 
the  person  who  holds  the  legal  title  to  the  land." 

In  Montana  where  the  mortgagor,  after  the  maturity  of 
the  mortgage,  gives  the  mortgagee  permission  to  enter,  the 
mortgagee  may  rightfully  retain  possession  until  the  debt  is 
paid.^^  In  New  Hampshire  the  mortgagee's  constructive  pos- 
session, during  the  year  following  his  foreclosing  entry,  is 
not  actual,  within  the  meaning  of  the  statute  of  foreclosure, 
as  against  the  mortgagee's  second  grantee,  who  has  actual  and 
exclusive  possession,  not  subordinate  in  fact  to  any  right  of 
any  other  person,  during  the  whole  of  the  same  year.^^ 

§  968.  Illinois  doctrine  and  practice. — In  Illinois  a  strict 
foreclosure  may  be  decreed,  and  generally  will  be,  where  the 


^^  Browne  v.  Browne,  17  Fla.  607, 
623,  35  Am.  Rep.  96. 

11  Smith  V.  Brand,  64  Ind.  427. 

12  Blood  V.  Shepard.  69  Kan.  752, 
77  Pac.  565. 

^^O'Fallon  v.  Clopton,  89  Mo. 
284;  Davis  v.  Holmes,  55  Mo.  349, 
351.  But  see  Lewis  v.  Schwenn,  93 
Mo.  26,  3  Am.  St.  Rep.  511,  2  S.  W. 
391. 

In  Missouri  a  mortgagee,  after 
forfeiture,  may  recover  possession 
by  ejectment  without  foreclosure. 
Lewis  V.  Sclnuem,  93  Mo.  26,  3  Am. 
St.  Rep.  511,  2  S.  W.  391.  After 
citing  Bush  v.  White,  85  Mo.  339; 
Buren  v.  Buren,  79  Mo.  538 ;  Rogers 
V  Brown,  61  Mo.  187;  and  Hunter 
V.  Hunter,  50  Mo.  445,  the  court 
say:  "From  these  decisions  there 
can  be  no  doubt  but  the  statute  does 
apply  to  mortgages." 


14  Winton's  Appeal.  87  Pa.  St.  77. 

15  Hord  V.  James,  v  Overt. 
(Tenn.)  201. 

^^  Jefferson  v.  Coleman,  110  Ind. 
515.  See  Jackson  v.  Weaver,  138 
Ind.  539,  38  N.  E.  166,  Loeb  v. 
Tinken,  124  Ind.  331,  24  N.  E.  295. 
See  also  Bayer  v.  Boyer,  89  111.  447, 
449;  Farrell  v.  Parlier,  50  111.  275; 
American  Insurance  Co.  v.  Gibson, 
104  Ind.  336;  Catterlin  v.  Arm- 
strong, 101  Ind.  258,  267;  Shirk  v. 
Andrews,  92  Ind.  509;  Smith  v. 
Brand,  64  Ind.  427;  Shaw  v.  Heisey, 
48  Iowa,  468;  Bolles  v.  Duff,  43  N. 
Y.  469. 

^"^  Jefferson  v.  Coleman,  110  Ind. 
515. 

18  f^^^  V.  Swingly,  6  Mont.  596, 
13  Pac.  375. 

^^  Bartlett  v.  Sanborn,  64  N.  H. 
70,  6  Atl.  486. 


1354  MORTGAGE    FORECLOSURES.  [§    968 

premises  are  not  worth  the  face  of  the  mortgage  and  the 
mortgagor  is  insolvent,^"  or  where  the  interests  of  both  par- 
ties seem  to  require  it.^^ 

But  where  the  amount  which  the  owner  of  the  equity  of  re- 
demption is  required  to  pay  to  redeem  from  a  foreclosure  sale, 
is  less  than  the  value  of  the  property,  a  strict  foreclosure 
cannot  be  maintained;  and  under  the  practice  in  Illinois,'^^ 
a  strict  foreclosure  of  a  mortgage  should  not  be  decreed,  as  a 
general  rule,  when  there  are  junior  incumbrances  upon  the 
property,  or  junior  creditors  or  claimants  of  the  equity  of  re- 
demption.'^^ And  where  the  estate  of  a  deceased  mortgagor 
is  insolvent,  that  fact,  as  well  as  the  descent  of  the  ecjuity  of 
redemption  to  infant  heirs,  would  seem  to  require  the  usual 
procedure  of  an  equitable  action.^* 

But  a  court  of  equity  will  not  sacrifice  or  endanger  the 
rights  of  a  mortgagee  holding  the  oldest  and  preferred  lien 
and  the  best  equity,  for  the  bare  possibility  of  a  wholly  im- 
probable benefit  to  one  having  a  second  lien  and  a  subordinate 
equity.  In  a  recent  case  ^^  the  court  say :  "We  do  not  un- 
derstand the  rule  in  this  state  to  be  that  a  strict  foreclosure 
will  in  no  case  and  under  no  circumstances  be  allowed  where 
there  are  other  creditors,  or  other  incumbrances  upon  the 
mortgaged  property,  or  purchasers  of  the  equity  of  redemp- 
tion. It  is  undoubtedly  true  that  the  general  rule  is,  that  a 
strict  foreclosure  will  not  be  permitted  where  there  is  such  a 
creditor,  purchaser,  or  incumbrancer;  but  in  our  view  there 
are  exceptions  to  the  general  rule." 

A  final  decree  in  strict  foreclosure  expressly  providing  that 
in  default  of  payment  all  the  right,  title  and  interest,  both  legal 

^0  Stephens    v.    Bichnell,    27    111.  Hydraulic  Co.  125  111.  237,  17  N.  E. 

444,  81  Am.  Dec.  242.  486;  Boyer  v.  Boyer,  89  111.  447. 

21  Johnson  v.  Donnell,  15  111.  97 ;  24   Boyer  v.  Boyer,  89  111.  447. 
Illinois  Starch  Co.  v.   Ottawa  Hy-  ^^  Illinois  Starch  Co.    v.    Ottawa 
draulic   Co.  23   III.   App.  272,   aflf'd  Hydraulic    Co.    20    111.     App.    457. 
125  111.  237,  17  N.  E.  486.  affirmed   in   123   111.  227,   13   N.   E. 

22  Gorham  v.  Parson,  119  111.  425.      201. 
^^  Illinois   Starch    Co.   v.    Ottawa 


§  969]  STRICT  FORECLOSURE.  1355 

and  equitable,  of  defendants,  shall  be  vested  absolutely  and  for- 
ever unconditionally  in  the  complainants,  is  sufficient  to  make 
a  complete  transfer  of  the  title,  although  under  the  English 
practice  the  title  is  not  completely  transferred  until  a  final 
order  based  on  proof  that  the  money  was  not  paid  according  to 
the  terms  of  the  decree.^®  A  strict  foreclosure  may  be  decreed 
in  Illinois  wherever  it  is  made  to  appear  that  the  property 
affords  but  scant  payment  to  a  mortgagee,  is  deteriorating  in 
value,  and  is  standing  idle  and  the  mortgage  indebtedness  is 
increasing.^'' 

The  Illinois  court  of  appeals,  in  the  case  of  Decker  v. 
Patton,^'  say  that  the  fact  that  failure  to  perform  the  condi- 
tions may  make  a  bill  to  redeem  operate  as  a  strict  foreclosure 
will  not  make  such  bill  subject  to  the  rule  against  strict  fore- 
closure, where  third  persons  are  interested  in  the  property  as 
purchasers  or  incumbrancers. 

§  969.  New  York  doctrine  and  practice. — In  New  York, 

the  usual  practice  is  to  order  a  sale  of  the  premises,  as  this 
is  the  most  beneficial  course  for  all  parties.  Actions  for  strict 
foreclosure  are  of  rare  occurrence,  and  are  looked  upon  with 
disfavor  by  the  courts,  except  in  unusual  cases  where  such  an 
action  is  the  only  method  by  which  complete  justice  can  be 
rendered  to  all  the  parties  in  interest.^® 

Thus,  a  purchaser  under  a  statutory  foreclosure  is  entitled 
to  maintain  an  action  for  strict  foreclosure  as  against  the 
wife  of  a  mortgagor,^"  or  against  a  judgment  creditor  or  a 
subsequent  mortgagee  or  lienor  who  was  not  made  a  party  to 
the  statutory  foreclosure,  and  whose  rights  were  therefore  not 

26  Ellis  V.  Leek,  127  111.  60,  20  N.  ^  Franklyn  v.  Haywood,  61  How. 

E.  218.  3  L.R.A.  259.  (N.  Y.)    Pr.    43.    46;    Benedict    v. 

^Illinois  Starch  Co.    V.    Ottawa  Gilman,  4  Paige  Ch.   (N.  Y.)  58. 

Hydraulic  Co.  125  111.  237,  17  N.  E.  30  Rq^s  v.  Boardman,  22  Hun  (N. 

486.  Y.)  527. 

2^20  111.   App.  210,   affirmed   120 
111.  464,  11  N.  E.  897. 


1356  MORTGAGE    FORECLOSURES.  [§    970 

barred  by  the  sale."  As  to  such  a  person,  a  strict  foreclosure 
is  not  only  the  proper,  but  it  is  thought  to  be  the  only  rem- 
edy.^'^ 

Strict  foreclosure  will  not  be  granted  to  cut  ofif  the  rights 
of  a  second  mortgagee  who  was  not  made  a  party  on  foreclos- 
ure of  the  prior  mortgage,  at  which  the  mortgagee  was  a  pur- 
chaser, where  the  failure  to  make  the  second  mortgagee  a 
party  was  known  before  the  decree,  and  leave  was  given  by 
the  court  to  make  him  a  party  to  the  action,  but  was  not  ac- 
cepted.^^ 

§  970.  Has  strict  foreclosure  been  abolished  by  the 
Code  in  New  York? — It  is  suggested  that  strict  foreclo- 
sure has  been  abolished  by  the  New  York  Code  of  Civil  Pro- 
cedure,^* which  requires  that  "in  an  action  to  foreclose  a 
mortgage  upon  real  property,  if  the  plaintiff  becomes  entitled 
to  final  judgment,  it  must  direct  the  sale  of  the  property  mort- 
gaged, or  of  such  part  thereof  as  is  sufficient  to  discharge  the 
mortgage  debt,  the  expenses  of  the  sale,  and  the  costs  of  the 
action." 

§  971.  Jurisdiction  of  court  to  decree  a  strict  foreclos- 
ure in  another  state. — Where  the  parties  are  within  the 
jurisdiction  of  the  courts  of  a  state,  and  process  is  personally 
served  upon  the  defendants  within  the  state,  an  action  may  be 
maintained   for   strict    foreclosure   against   lands   in   another 

^^Bolles  V.  Duff,  43  N.    Y.    469,  165;   Benedict  v.   Gilman,  4   Paige 

474,    10  Abb.    (N.   Y.)    Pr.    N.    S.  Ch.  {^.Y.)  SB;  Goodenow  \.  Ewer, 

399,  41  How.  (N.  Y.)  Pr.  355.  16  Cal.  461,  76  Am.  Dec.  540;  Shaw 

32  BoUes  V.  Duff,  43  N.    Y.    469,  v  Heiscy,  48  Iowa,  468. 

474,  10  Abb.  (N.  Y.)  Pr.  N.  S.  399,  ^^  Moulton  v.  Cornish,  138  N.  Y. 

41  How.   (N.  Y.)   Pr.  355;  Blanco  133,  33  N.  E.  842,  51  N.  Y.  S.  R. 

V.  Foo/e,  32  Barb.    (N.    Y.)    535;  845,  20  L.R.A.  370. 

Frankly n  v.  Haywood,  61  How.  (N.  34  n    y.  Code  Civil  Proc.  §  1626. 

Y.)    Pr.  46;  Ross  v.  Boardman,  22  See  Green  v.  Mussey,  38  Misc.  287, 

Hun     (N.    Y.)     527;     Kendall     v.  77  N.  Y.  Supp.  851." 
Tredwell,    14    How.    (N.    Y.)     Pr. 


972] 


STRICT     FORECLOSURE. 


1357 


State. ^^  Thus,  in  House  v.  Lockwood.^^  an  action  was  brougiit 
to  procure  a  strict  foreclosure  of  a  fnortgage  given  by  the  de- 
fendant upon  lands  in  Cook  county,  Illinois,  to  secure  the 
payment  of  a  sum  of  money  due  to  the  plaintiff.  The  referee 
dismissed  the  complaint  upon  the  ground  that  the  court  had  no 
jurisdiction  of  the  action,  because  the  land  was  situated  in  an- 
other state.  But  the  court  held  this  to  be  error,  because  the 
parties  were  within  the  jurisdiction  of  the  court  when  its 
process  was  served  upon  them,  and  had  appeared  and  put  in 
answers  contesting  the  right  of  the  plaintiff  to  maintain  the 
action,  and  the  court  thereby  acquired  jurisdiction  to  entertain 
the  suit  and  to  grant  the  relief  sought." 

§  972.  Parties  to  a  strict  foreclosure. — The  rules  as  to 
parties  to  a  strict  foreclosure  are  the  same  as  those  which 
govern  equitable  actions  for  the  sale.^'  It  has  been  said,  how- 
ever, that  the  plaintiff  need  not  make  those  persons  parties  to 
the  action  whose  rights  have  already  been  barred  by  a  previous 
foreclosure ;  ^^  but  all  persons  interested  in  the  mortgage,  or 
in  the  mortgaged  property,  must  be  made  parties  to  the  suit.*" 
Thus,  the  owner  of  the  equity  of  redemption  is  a  necessary  de- 
fendant.^^ and  so  are  subsequent  mortgagees.*^ 

The  supreme  court  of  Indiana,  in  the  case  of  Loeb  v.  Tink- 


35  See  2  Story's  Eq.  Jur.  (13th 
ed.)  g§  191,  192,  193. 

36  40  Hun  (X.  Y.)  532,  1  N.  Y. 
St.  196. 

3'  In  this  case  the  court  cited  and 
applied  Cragin  v.  Lovell  88  N.  Y. 
258;  Bolles  v.  Duff.  43  N.  Y.  469, 
10  Abb.  N.  Y.)  Pr.  N.  S.  399,  41 
How.  (N.  Y.)  Pr.  355;  Gardner  v. 
Ogden,  22  N.  Y.  327,  78  Am.  Dec. 
192 ;  Bailey  v.  Ryder,  10  N.  Y.  363 ; 
Lansing  v.  Goelet,  9  Cow.  (X.  Y.) 
346,  356;  Roblin  v.  Long,  60  How. 
(N.  Y.)  Pr.  200;  Siitphen  v.  Fozvler. 
9  Paige  Ch.   (X.  Y.)  280;  Mitchell 


V.  Bunch,  2  Paige  Ch.  (N.  Y.)  606. 
616,  617,  22  Am.  Dec.  669 ;  IVatts  v. 
Waddle,  31  U.  S.  (6  Pet.)  389,  400, 
8  L.  ed.  437,  442. 

38  Benedict  v.  Oilman.  4  Paige  Ch. 
(N.  Y.)  58. 

^^  Benedict  v.  Gilman,  4  Paige  Ch. 
(N.  Y.)  58. 

*^  Lyon  V.  Sanford,  5  Conn.  544. 

*^  Goodenow  v.  Ewer,  16  Cal. 
461,  76  Am.  Dec.  540. 

42  Weed  V.  Beebe,  21  Vt.  495.  See 
Brooks  V.  Vermont  Cent.  R.  Co.  14 
Blatchf.  C.  C.  463.  472.  also  Good- 
man V.  White.  26  Conn.  317.  320. 


1358  MORTGAGE    FORECLOSURES.  [§    973 

ler,*'  say  that  a  strict  foreclosure  may  be  had  against  persons 
who  are  not  made  parties  to  a  suit  to  foreclose  a  mortgage, 
where  they  have  only  a  right  of  redemption  by  reason  of  mari- 
tal relations  with  purchasers  at  a  sale  on  execution  issued  on 
a  judgment  junior  to  the  mortgage.  And  the  court  of  chancery 
of  New  Jersey,  in  the  case  of  Pettingill  v.  Hubbell,**  say  that 
a  purchaser  at  a  foreclosure  sale  of  a  portion  of  the  mortgaged 
premises  need  not  make  the  persons  interested  in  the  remain- 
ing lands  parties  to  a  bill  for  strict  foreclosure  against  a  de- 
fendant who  purchased  the  same  portion  of  the  mortgaged 
premises  from  an  owner  of  the  whole  premises,  and,  by  mis- 
take, was  not  made  a  party  to  the  foreclosure  suit. 

§  973.  Who  may  maintain  a  strict  foreclosure. — It  is 

thought  that  strict  foreclosure  cannot  be  maintained  upon 
real  property,  except  by  one  having  the  record  title  thereto.** 
And  it  has  been  said  that  strict  foreclosure  of  a  mortgage 
cannot  be  had  in  favor  of  a  mortgagee  who  purchased  at  a 
sale  under  foreclosure,  against  the  holder  of  a  sheriff's  deed 
on  execution  sale  against  the  mortgagor  prior  to  the  com- 
mencement of  the  foreclosure  suit,  who  was  not  made  a  party 
to  such  suit.*®  The  supreme  court  of  Missouri,  in  the  case 
of  Lewis  v.  Schwenn,*'''  say  that  a  mortgagor,  after  forfeiture, 
may  recover  possession  by  ejectment  without  foreclosure. 

In  some  states,  however,  a  mortgagee  may  obtain  an  eject- 
ment on  the  mortgage  against  the  mortgagor  for  a  condition 
broken ;  so  may  a  grantee  in  a  deed  absolute  in  form  given  as 
security  for  a  debt."    And  a  second  mortgagee  may  maintain 

«124  Ind.  331,  24  N.  E.  235.  *^  Jackson    v.    IVeaver,    138    Ind. 

44  32  Atl.  76.  539,  38  N.  E.  166. 

*^  Backus  V.  Burke.  48  Minn.  260,  47  93  Mo.  26,  3  Am.  St.  Rep.  511, 

51  N.  W.  284.     See  Burke  v.  Bald-  2  S.  W.  391. 

wiu.  51   Minn.  181,  53  N.  W.  460;  *^  Finlon    v.    Clark,    118    111.    32; 

Burke  V.  Backus,  51  Minn.  174,  53  WilHams  v.  Hilton,  35  Me.  547,  58 

N.  W.  458.  Am.  Dec.  729. 


§    974]  STRICT     FORECLOSURE.  1359 

an  action  against  the  first  mortgagee  and  against  the  owner  of 
the  equity  of  redemption.*^ 

In  Louisiana,  the  holder  of  a  mortgage  with  the  pact  de 
non  alienando,  who  has  proceeded  against  the  mortgagor  via 
ordinaria  and  recovered  a  judgment  for  his  debt,  with  recog- 
nition of  his  mortgage,  has  the  right  to  issue  a  fieri  facias  on 
such  judgment  and  to  seize  the  mortgaged  property  regardless 
of  alienations,  which  are  inoperative  against  such  a  mortgage, 
and  without  notice  to  or  process  against  the  third  possessor. *° 
But  it  is  thought  that  judgment  creditors  holding  liens  on 
mortgaged  premises  have  no  option  as  to  whether  there  shall 
be  a  strict  foreclosure  of  the  mortgage  or  a  sale,  where  the 
bond  has  been  discharged,  the  owner  of  the  equity  of  redemp- 
tion has  surrendered  it  to  the  mortgagee,  and  the  latter  simply 
holds  the  mortgage  as  a  muniment  of  title. *^ 

It  is  said,  in  the  case  of  Dohm  v.  Haskins,^'^  that  a  sale  by 
advertisement  under  a  mortgage,  by  an  assignee  whose  assign- 
ment is  not  so  acknowledged  as  to  be  entitled  to  record,  is  void 
under  the  Michigan  statute  regulating  foreclosure  by  adver- 
tisement, and  requiring  both  the  mortgage  and  assignments 
to  be  recorded,  although  such  assignment  is  in  fact  recorded. 

Where  a  bill  in  equity  is  brought  for  a  strict  foreclosure 
after  the  death  of  the  mortgagee,  his  heirs  at  law  are  neces- 
sary parties  plaintiff,  because  in  such  a  case  the  decree  vests 
the  legal  title  to  the  premises  in  the  heirs,  and  not  in  the  per- 
sonal representatives.^^ 

§  974.  Strict  foreclosure  against  infants. — In  a  strict 
foreclosure  against  an  infant,  he  is  entitled  to  have  his  day 
in  court  after  he  becomes  of  age,  to  show  any  error  in  the 
decree;  but  if  there  is  no  error,  he  will  be  bound  by  the  de- 

^  Cochran  v.  Godell,    131    Mass.  ^^  Lockard    v.    Hcudrickson     (X. 

464.  J.  Ch.)  25  Atl.  512. 

^'^Levy  V.  Lake,  43  La.  An.  1034,  ^^gs  Mich.  144.  50  N.  VV.  108. 

10  So.  375.  53  Osborne  v.    Tunis,  25   N.  J.   L. 

(1  Dutch  j  633. 


1360  MORTGAGE    FORECLOSURES.  [§    975 

cree.®*  This  rule  is  based  on  the  ancient  and  well  settled  prin- 
ciple, that  no  decree  should  be  rendered  against  an  infant 
without  giving  him  an  opportunity,  on  coming  of  age,  to 
show  cause  against  it.  The  time  usually  allowed  is  six  months, 
and  the  infant  is  entitled  to  the  process  of  the  court  for  that 
purpose  on  coming  of  age.^^ 

For  this  reason,  it  is  thought  that  instead  of  ever  seeking  a 
strict  foreclosure  of  a  mortgage  against  an  infant  heir  of  the 
mortgagor,  it  is  safer  to  obtain  a  decree  for  the  sale  of  the 
mortgaged  premises,  because  a  decree  of  sale  will  be  binding 
upon  the  infant  from  the  time  it  is  granted.^® 

§  975.  Pleadings  in  a  strict  foreclosure. — In  an  action 
for  strict  foreclosure,  the  pleadings  and  practice  are  substan- 
tially the  same  as  they  are  in  the  equitable  action  for  fore- 
closure and  sale."  The  specific  remedy  desired  should  be  de- 
manded in  the  prayer  of  the  complaint;  but  this  is  not  indis- 
pensable, because  in  an  action  for  foreclosure,  if  the  complaint 
is  drawn  in  the  ordinary  form,  and  it  appears  in  the  progress 
of  the  cause,  that  it  is  desirable,  a  sale  may  be  ordered,  al- 
though a  strict  foreclosure  may  be  prayed  for,  and  vice  versa}^ 

§  976.  Judgment  in  a  strict  foreclosure. — The  judgment 
in  a  strict  foreclosure  should  require  the  persons  entitled  to 
redeem  to  do  so  within  a  specified  time;  in  default  of  such 
redemption,  the  title  should  be  decreed  to  vest  absolutely  in 
the  plaintiff.*^     Until  the  expiration  of  the  time  limited  in 

54  Mills  V.  Dennis,  3  Johns.   Ch.  Jewell,  21  N.  H.  470,  487 ;  Long  v. 

(N.  Y.)  367;  Houston  v.  Aycock,  Mumford,  17  Ohio  St.  506,  93  Am. 

(5  Sneed.)   Tenn.  406,  3  Am.  Dec.  Dec.  638. 

131.  ^^  Mills  V.   Dennis,  3  Johns.   Ch. 

^^  Mills  V.   Dennis,  3  Johns.   Ch.  (N.  Y.)  367. 

(N.    Y.)    367;    McClellan    v.    Mc-  ^^  Kendall   v.    Treadwcll,   5    Abb. 

Clellan,    65    Me    508;    Whitney    v.  (N.  Y.)    Pr.   16.   14  How.   (N.  Y.) 

Stearnes,  52  Mass.  (11  Mete.)  319;  Pr.  165. 

Co^'n  V.  //caf/;.  47  Mass.  (6  Mete.)  ^^  Sage    v.    McLaughlin.  34  Wis. 

76;  Chandler  v.  McKinney.  6  Mich.  550. 

217,    74    Am.    Dec.    286;    Dow     v.  ^^  Kendall   v.    Trcadzvcll,   5    Abb. 


§  977]  STRICT  FORECLOSURE.  1361 

the  judgment  of  strict  foreclosure  for  the  payment  of  the 
mortgage  debt,  the  mortgage  will  not  be  foreclosed  and  the 
title  will  not  pass  to  the  plaintiff.^" 

The  court  of  chancery  of  New  Jersey,  in  the  case  of  Pettin- 
gill  V.  Hubbell,"  say  that  on  a  bill  for  strict  foreclosure  brought 
by  a  purchaser  at  foreclosure  sale  of  a  portion  of  the  mort- 
gaged premises  against  a  defendant  who  purchased  the  same 
portion  from  an  owner  of  the  entire  premises  and  who  was 
not  made  a  party  to  the  foreclosure  suit,  the  court  will  deter- 
mine upon  the  proofs  the  amount  of  the  mortgage  properly 
chargeable  against  the  portion  owned  by  the  defendant.  The 
supreme  court  of  New  York,  in  the  case  of  Moulton  v.  Cor- 
nish,^^  hold  that  on  denial  of  strict  foreclosure  to  cut  off  a 
second  mortgage,  the  ordinary  decree  of  foreclosure  may  be 
allowed  if  necessary  parties  are  brought  in. 

§  977.  Time  for  redemption. — The  period  allowed  for 
redemption  should  be  fixed  by  the  court  in  the  exercise  of  its 
sound  discretion ;  ^^  it  may  be  enlarged  from  time  to  time,  on 
application,  and  on  satisfactory  reasons  being  shown  there- 
for.®*   The  time  usually  allowed  for  redemption  is  six  months.®* 

Courts  are  very  liberal  in  strict  foreclosures  in  extending 
and  enlarging,  from  time  to  time,  the  period  allowed  for  re- 
demption; but  in  actions  to  redeem,  such  leniency  is  not  in- 

(N.  Y.)   Pr.  16,  14  How.   (N.  Y.)  535;  Ferine  v.  Dunn,  4  Johns.  Ch. 

Pr.    165;    Waters    v.    Hubbard,    44  (N.  Y.)  140;  McKinstry  v.  Mervin, 

Conn.  340;  Farrell  v.  Parlier,  50  111.  3  Johns.  Ch.  (N.  Y.  466  n;  Johnson 

274;    Koerner   v.    Willamette    Iron  v.  Donnell,  IS  III.  97;  Clark  v.  Rey- 

Works,  36  Or.  90,  78  Am.  St.  Rep.  burn,  75  U.  S.  (8  Wall.)  318    19  L. 

759,  58  Pac.  863.    See  Sage  v.  Iowa  ed.  354. 

Cent.  R.  Co.  99  U.  S.  (9  Otto),  334,  ^^ Ferine  v.  Dunn,  4  Johns.   Ch. 

25L.  ed.  394.  (N.    Y.)    140;    Downing    v.    Pal- 

60  Bolles  V.  Duff,  43  N.  Y.  469.  mateer,  1  T.  B.  Mon.  (Ky.)  64,  66 

6132  Atl.  76.  Quarles   v.    Knight,   8    Price,    630; 

62  138  N.  Y.  133,  33  N.  E.  842,  51  Monkhouse  v.  Corporation  of  Bed- 

N.  Y.  S.  R.  845,  20  L.R.A.  370.  ford,  17  Ves.  380. 

^^  Bolles  V.  Duff,  43   N.  Y.  469;  ^^  Ferine  v.  Dunn,  4  Johns.   Ch. 

Blanco  V.  Foofe,  32  Barb.   (N.  Y.)  (N.  Y.)   140;  McKinstry  v.  Mervin, 
Mortg.  Vol.  II.— 86. 


1362  MORTGAGE    FORECLOSURES.  [§    978 

dulged,  and  the  party  seeking  redemption  is  required  to  re- 
deem within  the  time  appointed.®^ 

§  978.  Setting  aside  and  opening  strict  foreclosure. — 
A  decree  of  strict  foreclosure  may  be  opened  and  set  aside 
the  same  as  a  decree  of  foreclosure  and  sale  in  an  equitable 
action,  and  for  many  of  the  same  causes. ^''^  After  a  decree 
of  foreclosure  has  been  entered,  the  conduct  of  the  parties  may 
be  such  as  to  waive,  or  open  the  decree ;  as  by  treating  the  debt 
as  still  due,^*  or  by  paying  a  part  of  it,®®  or  by  agreeing  that 
the  foreclosure  shall  be  null  and  void.'^*' 

Usually,  the  opening  of  a  decree  of  strict  foreclosure  de- 
pends upon  equitable  considerations  affecting  the  rights  of  the 
parties,  and  not  upon  the  regularity  of  the  proceedings.'* 
Where  a  mortgagee  supposed  that  he  had  made  a  valid  tender 
within  the  time  limited,  which  was  not  good  by  reason  of  some 
informality,  the  decree  of  strict  foreclosure  will  be  opened;'^ 
and  if  the  failure  to  pay  the  amount  directed  to  be  paid,  within 
the  time  allowed,  is  due  to  overtures  for  a  settlement  made  by 
the  plaintiff,  the  decree  of  foreclosure  will  be  opened.'^  Where 
a  mortgagor  who  had  paid  part  of  the  mortgage  debt,  was 
prevented  by  an  unavoidable  calamity,  from  paying  the  bal- 
ance, until  a  short  time  after  the  day  designated  for  such  pay- 

3  Johns.  Ch.  (N.  Y.)  466  n;  Barnes  ^^  Bissell  v.  Bosnian,  2  Dev.   (N. 

V.  Lee,  1  Bibb   (Ky.)  526;  Harkins  C.)   Eq.  154. 

V.    Forsyth,    11    Leigh    (Va.)    294;  ^^  Gilson  v.  Whitney,  51  Vt.  552; 

Edwards  v.   Cunliffe,   1   Madd.   Ch.  Smalley  v.  Hickok,  12  Vt.  153 ;  Con- 

287;  Monkhouse  v.  Corporation  of  verse  v.  Cook,  8  Vt.  164. 

Bedford,  17  Ves.  380,  407.  '"  Griswold  v.  Mather,    5    Conn. 

^6  Brinckerhoff     v.     Lansing,     4  435. 

Johns.  Ch.  (N.  Y.)  65,  8  Am.  Dec.  "^^  Bridgeport   Saz'.  Bank    v.    El- 

538;  Ferine  v.  Dunn,  4  Johns.  Ch.  dredge,  28  Conn.  556,  73  Am.  Dec. 

(N.  Y.)    140;  Harkins  v.  Forsyth,  688. 

11  Leigh  (Va.)  294;  Chicago  &  V.  ''^  Crane     v.     Hanks,      1      Root 

R.   Co.  V.  Fosdick,  106  U.   S.    (16  (Conn.)  468. 

Otto),  70,  27  L.  ed.  55.  "f^  Pier  son  v.  Clayes,  15  Vt.  93. 

^'  See  ante,  chap.  xxvi. 


§  978]  STRICT  FORECLOSURE.  1363 

ment,  when  he  tendered  the  amount  due,  the  foreclosure  was 
opened.'* 

Where  proper  service  has  not  been  made  on  the  defendants,, 
a  strict  foreclosure  may  be  set  aside  on  application^^  In  mak- 
ing an  application,  the  party  must  tender  the  mortgage  debt,. 
or  show  his  readiness  to  pay  it,  in  order  to  secure  the  relief 
desired.'® 

It  is  held  that,  under  the  Maine  statute,''  a  mortgage  is  not 
effectually  foreclosed  by  peaceably  and  openly  taking  posses- 
sion in  the  presence  of  two  witnesses,  should  the  witnesses 
fail  to  state  in  their  certificate  the  time  of  the  entry ,'^  and  the 
foreclosure  may  be  opened  or  set  aside  for  irregularity. 

''^  Crane      v.      Hanks,      1  Root  i^  Hatch  v.  Garza,  7  Tex.  60. 

(Conn.)  468.  "  Me  Rev.  Stat.  c.  90,  §  3,  cl.  3. 

"^^  Fall   V.   Evans,    20    Ind.  210;  "^^  Snow  v.  Pressey,  82  Me.  552. 

Mitchell  V.  Gray,  18  Ind.  123.  20  Atl.  ?& 


CHAPTER  XXXVI. 
FEES,  COSTS  AND  DISBURSEMENTS. 

FEES  OF  REFEREE  SELLING — COSTS  IN  GENERAL — WHEN  DISCRETIONARY — WHO 
MAY  HAVE — PRIOR  AND  JUNIOR  LIENORS — GUARDIAN  AD  LITEM — STIPU- 
LATION FOR  COUNSEL  FEE — STATUTORY  FORECLOSURE — COSTS  IN  DISTRIB- 
UTING  SURPLUS. 

§  979.  Fees  of  officer  conducting  sale. 

§  980.  Fees  of  such  officer  statutory. 

§  981.  Appeal  from  order  fixing  fees  of  referee  to  selL 

§  982.  Costs  in  general. 

§  983.  Costs  in  equitable  actions  to  foreclose. 

§  984.  Costs  where  guarantor  of  mortgage  deceased, 

§  985.  Costs  of  foreclosure  in  discretion  of  court. 

§  986.  Costs  under  New  York  Code  of  Civil  Procedure. 

:§  987.  Exceptions  to   discretion   of  court  in  allowing  costs. 

§  988.  Who  may  recover  costs. 

^  989.  Prior  mortgagee  entitled  to  costs. 

■§  990.  Costs  to  subsequent  incumbrancers. 

§  991.  Costs   on   two   foreclosures  against  same  property, 

§  992.  When   costs   not   allowed   to   mortgagee. 

§  993.  When  costs  not  allowed  to  defendants. 

§  994.  Notice  of  no  personal  claim. 

§  995.  Effect   of   excessive   demand    in   the   complaint 

§  996.  Effect  of  tender  after  action  brought. 

§  997.  Costs   on   default. 

§  998.  Costs  allowed  guardian  ad  litem, 

§  999.  Costs  on  appointment  of   receiver. 
§  1000.  Costs  on  resale. 
§  1001.  Who  personally  liable  for  costs. 
§  1002.  Out  of  what  fund  costs  payable. 
§  1003.  Counsel  fees  in  foreclosing  mortgages. 
§  1004.  Counsel  fees  in  Kentucky  and  Michigan. 
§  1005.  Stipulation   for  attorney's   fee— When  usurious. 
§  1006.  Allowance  of  attorney's   fee — Discretion  of  court. 
§  1007.  Allowance  of  attorney's  fee  a  matter  of  contract  or  Statute. 
§  1008.  Enforcement  of  counsel  fee  against  purchaser. 
§  1009.  Allegation  as  to  counsel   fee. 
§  1010.  When   attorney's   fee  not   allowed. 

1364 


§    979]  FEES,     COSTS    AND    DISBURSEMENTS.  1365 

§  1011.  Costs  on   redeeming. 

§  1012.  Foreclosure    under    power — Mortgagee's    compensation. 

§  1013.  Expenses  and  disbursements  of  trustee. 

§  1014.  Taxing  costs  and  disbursements  on  foreclosure  by  advertisement. 

§  1015.  What   disbursements   allowed. 

§  1016.  Who  may  require  taxation  of  costs  and  disbursements. 

§  1017.  Costs  in   surplus  proceedings. 

§  1018.  Who  entitled  to  costs  in  surplus  proceedings. 

§  1019.  Who  chargeable  with  costs  in  surplus  proceedings. 

§  1020.  Disbursements  in  surplus  proceedings. 

§  1021.  Same — Expenses  for  search — Unofficial  search. 

§  1022.  Interest  on  advancements. 

§  1023.  Interest  on  costs. 

§  979.  Fees  of  officer  conducting  sale. — The  New  York 
Code  of  Civil  Procedure  provides,'^  that  "the  fees  of  a  referee 
appointed  to  sell  real  property  pursuant  to  a  judgment  in  an 
action,  are  the  same  as  those  allowed  to  the  sheriff;  and  he 
is  also  allowed  the  same  disbursements  as  the  sheriff.^"  Where 
a  referee  is  required  to  take  security  upon  a  sale,  or  to  distri- 
bute, or  apply,  or  ascertain  and  report  upon  the  distribution 
or  application  of,  any  of  the  proceeds  of  the  sale,  he  is  also 
entitled  to  one-half  of  the  commissions  upon  the  amount  so 
secured,  distributed,  or  applied,  allowed  by  law  to  an  executor 
or  administrator  for  receiving  and  paying  out  money.  But 
commissions  shall  not  be  allowed  to  him  upon  a  sum  bidden 
by  a  party,  and  applied  upon  that  party's  demand,  as  fixed  by 
the  judgment,  without  being  paid  to  the  referee,  except  to  the 
amount  of  ten  dollars.  And  a  referee's  compensation,  includ- 
ing commissions,  cannot,  where  the  sale  is  under  a  judgment, 
in  an  action  to  foreclose  a  mortgage,  exceed  fifty  dollars,  un- 
less the  property  sold  for  ten  thousand  dollars  or  upwards,  in 
which  event  the  referee  may  receive  such  additional  compen- 
sation as  to  the  court  may  seem  proper,  or  in  any  other  case 
five  hundred  dollars.*^ 

79  N.  Y.  Code  Civ.  Proc.  §  3297.  "  n.  Y.  Code  Civ.  Proc.  §  3297 ; 

80  As  to  the  fees  allowed  to  a  Race  v.  Gilbert,  102  N.  Y.  298; 
sheriff,  see  N.  Y.  Code  Civ.  Proc.  §  Schermerhorn  v.  Prouty,  80  N.  Y. 
3307.  317,  21  Alb.  L.  J.  275;    Maker    v. 


1366  MORTGAGE    FORECLOSURES.  [§    980 

The  supreme  court  of  Maryland,  in  the  case  of  Johnson  v. 
Glenn, ®^  say  that  commissions  to  the  mortgagee  or  his  assignee 
for  the  sale  of  the  mortgaged  property  in  case  of  default,  are 
not  included  in  the  words  "all  expenses  incident  to  such  sale" 
in  the  direction  in  the  mortgage  that  the  proceeds  of  sale  be 
first  applied  to  such  expenses. 

§  980.  Fees  of  such  officer  statutory. — It  has  always 
been  the  policy  of  the  law  to  prescribe  and  fix  the  compen- 
sation which  may  be  demanded  for  the  performance  of  legal 
duties  by  public  officers.  And  where  no  provision  is  made, 
either  directly  or  indirectly,  no  fees  can  be  lawfully  demanded. 
Costs  and  fees  are  recoverable  by  virtue  of  statutory  author- 
ity only,  and  where  no  such  authority  exists,  no  claim  for 
their  recovery  can  be  maintained.'' 

A  referee  for  selling  real  estate,  can  recover  no  more  than 
the  fees  prescribed  by  statute,  although  there  may  be  an  ex- 
press agreement  between  the  parties  to  pay  a  larger  sum.** 
No  fees  can  be  allowed  to  an  auctioneer  for  services  upon  the 
adjournment  of  a  sale  by  a  referee.*^ 

O' Cornier,  61   How.     (N.    Y.)     Pr.  pealed  by  the  amendment  of   1876 

103 ;    Walbridge  v.  James,   16  Hun  to  §  309  of  the  Code  of  Procedure, 

(N.   Y.)    8;   Harrington  v.  Bayles,  which  limits  the  sum  to  be  allowed 

40  Misc.  388,  82  N.  Y.  Supp.  379.  as  fees  on  such  a  sale.    The  amend- 

See  Daby  v.  Jacot,  2  Abb.   (N.  Y.)  ment  simply  modifies  the  act  by  fix- 

N.   C.  97 ;  Richards  v.  Richards,  2  ing  the  maximum  of  fees,  leaving 

Abb.   (N.  Y.)   N.  C.    93;    Innes    v.  the  scale  of  charges  up  to  that  limit 

Purcell,  2  T.  &  C.    (N.  Y.)   538,   1  as    fixed    by    said  act.     Schermer- 

Hun     (N.    Y.)    318;    Metropolitan  horn  v.    Prouty,  80   N.   Y.  317,  21 

Life  Ins.  Co.  v.  Bendheim,  59  N.  Y.  Alb.  L.  J.  275. 

Supp.   793;  Dime  Savings  Bank  v.  8230  Md.  369,  30  Atl.  993. 

Pettit,    59    N.    Y.    Supp.   794.      See  ^^  Innes  v.  Purcell,  2  T.  k  C.  (N. 

also  Hover  v.  Hover,  25  Misc.  95,  Y.)   538,  539,   1  Hun   (N.  Y.)  318. 

54  N.  Y.  Supp.  693.    The  act  (chap.  See  Downing  v.  Marshall,  27  N.  Y. 

569,    Laws    1869,    as    amended    by  380. 

chap.  192,  Laws  1874)  in  relation  to  ^^  Brady   v.   Kingsland,   5    N.    Y. 

the  fees  of  sheriflfs    and    referees,  Civ.   Proc.  Rep.  413. 

on  foreclosure  sales  in  the  city  and  ^^  Ward  v.  James,  8  Hun  (N.  Y.) 

county  of  New  York,  was  not  re-  526, 


§    982]  FEES,     COSTS    AND    DISBURSEMENTS.  1367 

It  has  been  held,  in  the  case  of  Lockwood  v.  Fox,®^  that 
chapter  569,  of  New  York  laws  of  1869,  as  amended  by  chap- 
ter 192,  of  the  laws  of  1874,  not  having  been  repealed,  is  by 
virtue  of  section  3308  of  the  Code  of  Civil  Procedure,  still  in 
force,  and  that  the  fees  of  a  referee  to  sell,  on  a  foreclosure  in 
the  city  and  county  of  New  York,  must  be  taxed  thereunder. 

§  981.  Appeal  from  order  fixing  fees  of  referee  to  sell. — 
Under  section  1296  of  the  Code,  a  referee  appointed  to  sell 
real  estate  in  pursuance  of  a  judgment,  may  appeal  from  an 
order  fixing  his  fees  and  compensation."  An  order  making 
an  allowance  to  a  referee  appointed  to  conduct  the  sale  under 
a  decree  of  foreclosure,  which  charges  the  owner  of  the  equity 
of  redemption  with  the  payment  of  a  definite  sum  of  money, 
which  is  greater  than  he  or  his  property  can  lawfully  be 
charged  with,  afifects  a  substantial  right,  and  is  appealable 
when  made  in  a  summary  application  for  judgment." 

§  982.  Costs  in  general. — In  actions  at  law,  the  rule 
seems  to  be  well  settled,  both  in  England  and  in  this  country, 
that  the  prevailing  party  is  entitled  to  costs,  although  he  may 
recover  only  a  part  of  his  demand;  this  rule  has  been  estab- 
lished t^  statute  in  many  states. ^^  A  debtor  may,  however,  by 
offering  to  confess  judgment  for  a  certain  amount,  become 
entitled  to  costs  accruing  subsecjuently  to  his  offer,  provided 
his  creditor  fails  to  recover  more  than  the  amount  offered.^" 

In  suits  in  equity,  however,  the  allowance,  or  disallowance, 
of  costs  depends  largely  on  the  circumstances  of  each  par- 
se 1  N.  Y.  Civ.  Proc.  Rep.  407.  111.  407 ;  Brandies  v.  Stewart,  1  Met. 
^"^  Hob  art  v.  Hobart,  23  Hun  (N.       (Ky.)  395;  Underwood  v.  l.acapere. 
Y.)  484.  14  La.  An.  274;  Wall  v.  Covington, 
i^Innes  v.  Purccll.  2  T.  &  C.  (N.       76  N.  C.  150;  Little  v.  Lockman.  5 
Y.)  538,  1  Hun  (N.  Y.)  318.     See      Jones  (N.  C.)  L.  433;  McReynolds 
People  V.  New   York  Cent.  R.  Co.      v.   Cates,  7    Humph.     (Tenn.)     29. 
29  N.  Y.  418,  422.                                       See    Brown   v.    Skotland  as  adm'r. 

^Wood   V.   Brown,  6   Daly    (N.       etc.  12  N.  D.  445,  97  N.  W.  543. 
Y.)  428;  5"^  Charles  v.  O'Mailey.  18  9°  Bathgate  v.  Haskins.  63  N.  Y. 


1368  MORTGAGE    FORECLOSURES.  [§    982 

ticiilar  case,  and  rests  entirely  within  tlie  discretion  of  the 
court,  to  be  exercised  upon  equitable  principles  and  with 
reference  to  the  general  rules  of  practice.  Prima  facie,  the 
successful  party  is  entitled  to  costs,  and  it  is  incumbent  upon 
the  defeated  party,  if  there  are  just  reasons  why  he  should 
not  pay  a  bill  of  costs,  to  show  such  circumstances  as  would 
overcome  the  presumptive  right  of  the  successful  party;  if  it 
is  shown  that  it  would  be  unjust  to  compel  the  defeated  party 
to  pay  costs,  the  court  may,  in  the  exercise  of  its  sound  dis- 
cretion, refuse  costs  to  either  party,  or  it  may  even  impose 
them  upon  the  successful  party.'* 

In  Clark  v.  Reed,®''  Putnam,  J.,  in  delivering  the  opinion 
of  the  court,  stated  the  general  practice  in  equity,  with  his 
usual  accuracy,  as  follows :  "We  adopt  the  general  rule,  that 
the  prevailing  party  is  to  have  costs,  as  applicable  to  suits  in 
equity  as  well  as  at  law.  It  will  be  applied,  unless  the  losing 
party  can  show  that  equity  requires  a  different  judgment.  If 
it  should  appear  that  the  plaintiff  had  good  reason  to  think 
the   respondent  was  liable  upon  equitable  principles  to  pay 

261;    O'Conner  v.   Arnold,  53  Ind.  McArtee    v.    Engart,    13    111.    242; 

203;    Rucker    v.    Howard,    2    Bibb.  Frisby  v.  Ballance,  5  111.  (4  Scam.) 

(Ky.)    166,  169;  Building  Assoc,  v.  287,  39  Am.    Dec.    409;    Stone    v. 

Crump,    42    Md.    192;    Holden    v.  Locke,  48  Me.  425;  Lee  v.  Pindle, 

Kynaston,  2  Beav.  204,  206.  12  Gill.  &  J.    (Md.)   288;   Clark  v. 

^^Eldridge   v.    Strenz,   39   N.    Y.  Reed,    28    Mass.     (11    Pick.)    449; 

Supr.  Ct.  (7  J.  &  S.)  295;  Belmont  Carpenter  v.  Easton  &  A.  R.  R.  Co. 

V.  Ponvert,  38  N.  Y.  Supr.  Ct.    (6  28  N.  J.  Eq.  (1  Stew.)  390;  Decker 

J.  &  S.)  425;  Robinson  v.  Crofsey,  v.   Caskey,  3   N.  J.  Eq.    (2   H.  W. 

2  Edw.  Ch.  (N.  Y.)   138;  Travis  v.  Gr.)    446;   Hess  v.  Beates,  78  Pa. 

Waters,    12    Johns.    (N.    Y.)    500;  St.  429;  Massing  v.  Ames,  38  Wis. 

Glen  V.  Fisher,  6  Johns.    Ch.     (N.  285;   Pennsylvania  v.    Wheeling   & 

Y.)  ZZ,  10  Am.  Dec.  310;  Methodist  Belmont  Bridge  Company,  59  U.  S. 

Church  V.  J aques,\  'iohns.  Ch.  {]^.  (18    How.)    421,    15    L.    ed.    435; 

Y.)  65;  Gray  v.  Gray,  15  Ala.  779;  Brooks  v.  Byani,  2  Story  C.  C.  553; 

Temple  v.  Lawson,    19    Ark.    148;  Hunter  v.  Marlboro,  2  Woodb.   & 

Cowles  V.   Whitman,  10  Conn.   121,  Min.  C.  C.  168;  Vancouver  v.  Bliss, 

25  Am.   Dec.  60;  Pearce  v.   Chas-  11  Ves.  462. 

tain,  3  Ga.  226,  46  Am.   Dec.  423;  92  28  Mass.    (11   Pick.)   449. 


§    983]  FEES,     COSTS    AND    DISBURSEMENTS.  1369 

money,  to  perform  specific  contracts,  or  to  make  discovery, 
and  it  should,  upon  hearing  of  the  answer,  appear  that  no 
such  cause  existed,  as  the  plaintiff  had  reason  to  suppose 
did  exist,  the  court  would  not  award  costs  against  him,  if  it 
appeared  that  the  respondent  was  in  such  a  situation  as  to 
render  it  probable  that  he  was  amenable  to  the  call  of  the 
plaintiff  upon  equitable  principles.  On  the  other  hand,  if  it 
should  appear  that  the  plaintiff  knew  the  whole  ground  and 
made  a  claim  in  equity,  which  was  successfully  resisted  by 
the  respondent,  it  would  seem  that  costs  should  be  allowed 
as  well  in  equity  as  at  law.  The  mere  change  of  the  forum 
should  not  in  reason  make  any  difference  in  the  question  of 
costs." 

§  983.  Costs   in   equitable   actions   to   foreclose. — The 

mortgagee  in  a  foreclosure,  like  the  plaintiff  in  other  actions, 
is  generally  entitled  to  a  bill  of  costs,  if  he  prevails  and  obtains 
a  decree  of  sale.^^  But  all  costs  and  fees  are,  as  a  rule,  statu- 
tory ;  ^*  and  where  no  statutory  right  to  charge  or  allow  them 
exists,  no  legal  or  equitable  right  to  do  so  can  be  presumed.^* 
Where  the  facts  alleged  and  proved  entitle  the  plaintiff  to 
costs,  a  judgment  rendered  for  costs  will  not  be  reversed 
or  set  aside  merely  because  the  plaintiff  did  not  ask  for  costs 
in  his  complaint ;  ^^  the  established  practice,  however,  requires 
the  successful  party  to  apply  by  motion  for  his  costs,  or  to 
demand  them  in  some  manner.^'  And  where  the  court  of 
appeals  reverses  a  judgment,  "with  costs  to  abide  the  event," 

^3  Benedict  V.  Gilman,  4  Fa\ge  Ch.  37    N.    Y.   380,    80  Am.    Dec.   290; 

(N.  Y.)   58;   Concklin  v.  Codding-  Inncs  v.  Purcell,  2  T.  &  C.  (N.  Y.) 

ton,  12  N.  J.  Eq.   (1  Beas.)  250,  72  538.  1  Hun  (N.  Y.)  318. 

Am.  Dec.  393;  WethercU  v.  Collins,  ^^Hecs  v.  Nellis,  1  T.  &  C.   (N. 

3   Madd.  255;   Bartle  v.    Wilkin,  8  Y.)  118,  121. 

Sim.  238;  Loftus  v.  Swift,  2  Sch.  ^"^  Chase  v.  Miser,  67   Barb.    (N. 

&  Lef.  642.  Y.)    441,   443;    Lanz   v.    Trout,   46 

94  Ward  V.  James,  8  Hun  (N.  Y.)  How.    (N.   Y.)    Pr.  94.     See   Gray 
526.  V.  Hannah,  3  Abb.   (N.  Y.)   Pr.  N. 

95  Ward  V.  James,  8  Hun  (N.  Y.)  S.  183. 
526.      See    Downing    v.    Marshall, 


1370  MORTGAGE    FORECLOSURES.  [§    983 

the  party  who  finally  succeeds  can  recover  costs  for  all  the 
different  steps  in  the  action. ^^ 

In  the  case  of  Bockes  v.  Hathorn,^^  it  was  held  that  where 
an  action  on  a  bond  and  to  foreclose  a  mortgage  collateral 
thereto,  is  difficult  and  unusual,  on  account  of  a  defence  and 
trial,  an  additional  allowance,  not  exceeding  five  per  centum 
of  the  recovery,  nor  $2,000  in  the  aggregate,  may  be  granted 
to  any  party. 

It  is  competent  for  the  parties  to  a  foreclosure  action  to 
stipulate  regarding  the  costs  of  the  action  and  the  payment 
thereof,  and  such  stipulation  will  be  enforced  in  those  cases 
where  the  interests  of  a  third  person  are  not  affected  injurious- 
ly.^ Thus  the  supreme  court  of  Louisiana,  in  the  case  of 
Regan's  Succession,^  say  that  a  stipulation  between  a  mort- 
gagee and  the  executor  of  the  mortgagor  and  his  counsel, 
that  he  will  not  foreclose,  but  will  permit  the  executor  to  sell 
the  mortgaged  property  on  credit,  provided  the  executor  and 
his  counsel  will  not  charge  commissions  or  fees  upon  the 
proceeds,  when  plain  and  unambiguous,  and  free  from  fraud 
or  error,  will  be  enforced,  and  such  fees  striken  out  on  an 
accounting. 

The  supreme  court  of  South  Carolina,  in  the  case  of  the 
American  Freehold  Land  Mortgage  Company  v.  Moody,'  say 

98  Newcomb  v.  Hale,  4  N.  Y.  Civ.  Div.  36,  82  N.  Y.  Supp.  644.  See 
Proc.  Rep.  25,  27.  See  First  Nat.  Waterbury  as  ex'r,  etc.  v.  Tucker 
Bank  of  Meadville  v.  Fourth  Nat.  &  Carter  Cordage  Co.  152  N.  Y. 
Bank  of  New  York,  84  N.  Y.  469;  610,  46  N.  E.  959;  Badger  v.  John- 
Donovan  V.  Vandermark,  22  Hun  ston,  106  App.  Div.  237,  94  N.  Y. 
(N.    Y.)    307;   Saunders  v.    Town-  Supp.  421. 

shend,  63  How.  (N.  Y.)   Pr.  343.  Real  property  in  §  3253  does  not 

99  17  Hun  (N.  Y.)  87,  distinguish-  include  a  leasehold  estate.  Barnes 
ing    Hunt   V.    Chapman,   62    N.    Y.      v.  Meyer,  41  N.  Y.  Supp.  210. 

ZZZ,  N.  Y.  Code  Civ.  Proc.  §§  3252,  i  Cook  v.  Gilchrist,  82  Iowa,  277, 

3253.  sub  nom.     Cook  v.  Shorthill,  48  N. 

For  effect  of  amendment  of  1898  W.  84.    See  Post,  §  1007. 

on   Code   §   3253,   see  Long  Island  ^  43  La.  An.  723,  9  So.  753. 

Loan  &   Trust  Co.  v.  Long  Island  3  40  S.  C.  187,  18  S.  E,  677. 
City  &  Newton  R.  R.  Co.  85  App. 


§    983]  FEES,     COSTS    AND    DISBURSEMENTS.  1371 

that  the  costs  of  an  action  are  required  to  be  first  paid  out 
of  the  proceeds  of  the  whole  property  in  those  cases  where  the 
decree  in  foreclosure  to  w^iich  a  second  mortgagee  and  judg- 
ment creditors  of  the  mortgagor  are  parties,  holding  the 
mortgagor  entitled  to  a  homestead,  and  providing  that  the 
mortgages  are  to  be  first  paid  out  of  the  homestead,  and  the 
judgments  out  of  the  remainder  of  the  property  in  the  order 
of  their  priority;  and  further  providing  that  out  of  the  pro- 
ceeds of  the  sale  the  sheriff  pay,  first,  the  costs  of  the  action 
and  expenses  of  the  sale,  and,  next,  to  the  plaintiff  the  amount 
of  the  mortgage  debt  and  interest,  which  leaves  a  balance 
less  than  the  amount  of  the  second  mortgage;  and  further  pro- 
viding that  out  of  the  remainder  of  the  proceeds  of  sale, 
exclusive  of  costs  and  expenses,  the  sheriff  pay  the  second 
mortgagee  the  amount  of  his  debt,  not  to  exceed  as  to  both 
mortgagees  the  sum  regarded  as  the  homestead,  in  exoner- 
ation of  the  property  of  the  defendant  in  excess  of  the  home- 
stead, requires  the  costs  of  the  action  to  be  first  paid  out  of 
the  proceeds  of  the  whole  property. 

In  those  cases  where  the  mortgage  contains  a  stipulation  for 
attorney's  fees  in  case  the  mortgage  is  placed  in  the  hands 
of  an  attorney  for  foreclosure,  which  is  done  and  proceed- 
ings commenced,  the  mortgagor  cannot  stop  foreclosure  with- 
out paying  the  attorney's  fees.*  But  the  neglect  of  the  mort- 
gagee to  file  an  affidavit  of  costs  and  disbursements  as  re- 
quired by  statute,*  cannot  affect  the  validity  of  a  sale  under 
the  power  in  the  mortgage.^ 

The  supreme  court  of  Illinois,  in  the  case  of  Cheltenham 
Improvement  Company  v.  Whitehead,'  say  that  a  trustee  fore- 
closing a  trust  deed  is  not  warranted  in  paying  the  cost 
of  an  abstract  of  title,  under  a  provision  in  the  deed  author- 

^M Jones  v.  Yellow  Medicine  Co.  ^Johnson  v.  Cocks,  Z7  Minn.  530, 

Bk.  45  Minn.  335,  47  N.  W.   1072.  35  N.  W.  436. 

See  Post,  §§  1003,  1007.  7  128  111.  279,  21  N.  E.  569. 

6  Minn.  Gen.  Stat.  1878,  c.  81,  §  23. 


1372  MORTGAGE    FORECLOSURES.  [§    984 

izing  him,  in  case  of  foreclosure,  to  pay  certain  specified 
claims,  "also  all  other  expenses  of  the  trust." 

§  984.  Costs  where  guarantor  of  mortgage  deceased. — 
In  proceedings  to  sell  the  real  estate  of  a  deceased  guarantor 
of  a  mortgage,  the  costs  of  foreclosure  cannot  be  considered 
as  a  part  of  the  debt,  yet  as  they  are  incidental  to  the  endeavor 
to  collect  the  same  out  of  the  premises,  the  amount  to  be 
credited  on  the  debt  is  the  proceeds  realized  from  the  fore- 
closure, after  deducting  the  costs.'  A  surety  has  no  equity  to 
demand  that  so  much  money  as  is  necessary  to  pay  the  costs 
of  collection,  shall  be  withheld  from  that  object  and  applied 
exclusively  to  satisfy  the  principal  of  the  debt,  for  as  the 
creditor  is  entitled  to  the  whole  amount,  the  expenses  of  col- 
lection are  properly  deductible  from  the  sum  realized  from 
the  principal  debtor. 

§  985,  Costs  of  foreclosure  in  discretion  of  court. — The 

allowance  of  costs  in  actions  in  equity  is  always  in  the  dis- 
cretion of  the  trial  court,®  but  the  discretion  to  be  exercised 
must  be  a  reasonable  and  sound  one.^°  Their  allowance,  or 
disallowance,  will  always  depend  largely  on  the  facts  and  cir- 
cumstances of  each  particular  case,  and  the  discretion  of  the 
court  is  to  be  exercised  without  reference  to  the  general  rules 
of  practice,  but  as  equity  may  require."     Such  discretion  will 

^Hurd  V.   Callahan,  9  Abb.    (N.  v.  Waters,  1  Johns.  Ch,  (N.  Y.)  89; 

Y.)  N.  C.  374.  Nicoll  v.  Trustees  of  Huntington,  1 

^Garrv.  Bright,  1  Barb.  Ch.  (N.  Johns.  Ch.   (N.  Y.)    166;  Cunning- 

Y.)       157;      Methodist      Episcopal  ham  v.  Freeborn,  11  Wend.  (N.  Y.) 

Church  V.  Jaques,  1  Johns.  Ch.  (N.  258;  Pearce  v.  Chastain,  3  Ga.  226, 

Y.)   65;  Lyman  v.  Lyman,  2  Paine  46    Am.    Dec.    423;     The    Martha, 

C.  C.  53.     See  Mackey  v.  Cairns,  5  Blatchf.  &  How.  D.  C.  169. 

Cow.  (N.  Y.)  575,  586,  15  Am.  Dec.  ^^  Eastburn  v.  Kirk,  2  Johns.  Ch. 

477;     Dcmarest     v.     Wynkoop,     3  (N.    Y.)    317.      See    Law    v.    Mc- 

Johns.  Ch.  (N.  Y.)  129,  8  Am.  Dec.  Donald,  9  Hun  (N.  Y.)  23. 

467 ;  Pendelton  v.  Eaton,  3  Johns.  ^^  Prima  facie,  the  prevailing  par- 

Ch.   (N.  Y.)  69;  Murray  v.  Ballon,  ty   is   entitled  to  costs,   and   it   de- 

1  Johns.   Ch.    (N.  Y.)   566;   Travis  volves  upon  the  defeated  party  to 


§  985] 


FEES,     COSTS    AND    DISBURSEMENTS. 


1373 


not  be  interfered  with  by  an  appellate  court,  except  in  cases 
of  open  abuse  or  gross  error,  or  where  it  is  exercised  in  dis- 
regard of  recognized  equitable  principles.^^ 

The  matter  of  costs,  in  the  several  states,  depends  very 
much  upon  their  statutes  and  practice,  which  are  quite  dis- 
similar. But  as  foreclosures  are  equitable  actions  in  most 
states,  the  costs  are  generally  within  the  discretion  of  the 
court.^'  And,  although  there  is  no  fixed  rule  for  granting 
costs,  as  in  courts  of  law,  courts  of  equity  rarely,  if  ever, 
refuse  to  allow  them." 

In  some  states,  as  in  Vermont, ^^  the  chancellor  may  require 
the  defendant  to  furnish  security  for  costs,  when  his  defense 
is  an  affirmative  claim,  such  as  payment  of  a  mortgage  debt.^^ 


overcome  such  presumptive  right. 
See  Atkinson  v.  Manks,  1  Cow.  (N. 
Y.)  691 ;  Can  field  v.  Morgan,  1 
Hopk.  Ch.  (N.  Y.)  224;  Aymer  v. 
Gault,  2  Paige  Ch.  (N.  Y.)  284; 
Badeau  v.  Rogers,  2  Paige  Ch.  (N. 
Y.)  209;  Gray  v.  Gray,  15  Ala.  779; 
Temple  v.  Lawson,  19  Ark.  148; 
Cowles  V.  Whitman,  10  Conn.  121, 
25  Am.  Dec.  60;  McArtee  v.  Engart, 
13  111.  243;  Frisby  v.  Ballance,  5 
111.  (4  Scam.)  287,  34  Am.  Dec. 
409;  Clark  v.  Reed,  28  Mass.  (11 
Pick.)  449;  Saunders  v.  Frost,  22 
Mass  (5  Pick.)  259,  16  Am.  Dec. 
395;  Farley  v.  Blood,  30  N.  H.  354; 
Carpenter  v.  Easton  &  A.  R.  Co. 
28  N.  J.  Eq.  (1  Stew.)  392;  Decker 
V.  Caskey,  3  N.  J.  Eq.  (2  H.  W. 
Gr.)  446;  Hess  v.  Beates,  78  Pa.  St. 
429;  Manchester  P.  W.  v.  Stimp- 
son,  2  R.  I.  415;  Pennsylvania  v. 
Wheeling  &  B.  B.  Co.  59  U.  S.  (18 
How.)  421,  15  L.  ed.  435;  Spring 
V.  South  Carolina  Ins.  Co.  21  U.  S. 
(8  Wheat.)  268,  5  L.  ed.  614; 
Hunter  v.   Marlboro,  2   Woodb.   & 


Min.  C.  C.  168;  Aldrich  v.  Thomp- 
son, 2  Bro.  Ch.  149. 

^^  Morris  v.  Wheeler,  45  N.  Y. 
708;  Barker  v.  White,  1  Abb.  App. 
Dec.  (N.  Y.)  95;  House  v.  Eisen- 
lord,  30  Hun   (N.  Y.)  90,  92. 

13  Garr  v.  Bright,  1  Barb.  Ch. 
(N.  Y.)  157;  O'Hara  v.  Brophy, 
24  How.  (X.  Y.)  Pr.  379;  Bartow 
V.  Cleveland,  16  How.  (N.  Y.)  Pr. 
364,  7  Abb.  (N.  Y.)  Pr.  339;  Pratt 
V.  Ramsdell,  16  How.  (N.  Y.)  Pr. 
59,  7  Abb.  (N.  Y.)  Pr.  340n ;  Lossee 
V.  Ellis,  13  Hun  (N.  Y.)  655;  Gal- 
lagher V.  Egan,  2  Sandf.  (N.  Y.) 
742;  Williams  v.  Williams,  117  Wis. 
125,  94  N.  W.  25;  Irvine  v.  Perry, 
119  Cal.  352,  51  Pac.  544;  House  v. 
Eisenlord,  102  N.  Y.  713,  7  N.  E. 
428. 

''■^Garr  v.  Bright,  1  Barb.  Ch.  (N. 
Y.)  157;  Eastburn  v.  Kirk,  2  Johns. 
Ch.  (N.  Y.)  317;  Stevens  v. 
Veriane,  2  Lans.  (N.  Y.)  90. 

IB  Under  Rev.  Laws,  §  713. 

16  Badger  v.  Taft,  58  Vt.  585,  sub 
nom.     Badger  v.  Shaza,  3  Atl.  585. 


1374  MORTGAGE    FORECLOSURES.  [§    986 

And  in  HolUngsworth  v.  Keen,"  where  the  bill  for  an  injunc- 
tion was  dismissed,  and  the  land  embraced  in  one  of  the  mort- 
gages was  sold,  but  as  to  that  sale  the  court  found  it  had 
been  prematurely  and  inequitably  made,  and  that  there  was 
in  fact  less  due  to  defendants  than  was  claimed  in  the  notes, 
it  was  held,  by  a  divided  court,  that  eaeh  party  should  have 
been  required  to  pay  his  own  costs. 

§  986.  Costs  under  New  York  Code  of  Civil  Proced- 
ure.— In  New  York,  the  allowance  of  costs  in  equity  cases 
stands  on  the  same  footing  now  that  it  did  before  the  enact- 
ment of  the  Code  of  Civil  Procedure."  The  rules  govern- 
ing costs  apply  to  actions  for  strict  foreclosure,  as  well  as  to 
equitable  actions  for  a  decree  of  foreclosure  and  sale.^^ 

Where  the  action  is  tried  before  a  referee,  the  referee  takes 
the  place  of  the  court,  and  the  question  of  costs  is  a  matter 
resting  in  his  sound  discretion.^"  If  this  discretion  is  honestly 
exercised,^^  it  can  be  interfered  with  only  by  an  appeal  from 
the  judgment.^^ 

§  987.  Exceptions  to  discretion  of  court  in  allowing 
costs. — Where  a  party  to  a  foreclosure  is  dissatisfied  with 
the  costs  allowed  by  a  trial  court,  his  only  method  for  obtain- 
ing relief  is  to  challenge  the  finding  as  to  costs  by  an  excep- 
tion and  an  appeal  from  the  judgment.^^    Where  a  trial  court 

"117  111.  511,  6  N.  E.  148.     See  ^^  Graves  v.  Blanchard,  3  N.  Y. 

Koon  V.  HoUingsworth,  97  111.  52.  Code  Rep.  25,  4  How.  (N.  Y.)   Pr. 

^^Law  V.  McDonald,  9  Hun   (N.  300;  Pratt  v.  Styles,  9  Abb.  (N.  Y.) 

Y.)  23.     See  Phelps  v.  Woods,  46  Pr.  150,  17  How.  (N.  Y.)  Pr.  211; 

How.  {N.Y.)  Pr.  1;  Pratt  V.  Stiles,  Ludington    v.    Taft,    10    Barb.    (N. 

17  How.   (N.  Y.)   Pr.  211;  Church  Y.)  447;  Cotich  v.  Millard,  3  How. 

V.  Kidd,  3  Hun  (N.  Y.)  254.     See  (N.  Y.)    Pr.   N.   S.  22;   Lossee  v. 

N.  Y.  Code  Civ.  Proc.  §§  3228,  3229,  Ellis,  13  Hun  (N.  Y.)  655;  Law  v. 

3230.  McDonald,  9  Hun    (N.  Y.)   23. 

19  O'Hara    v.    Brophy,    42    How.  21  Taylor  v.  Root,  48  N.  Y.  687. 

(N.   Y)    Pr.   379.     See  Bartow  v.  22 /.^.^.y^^  y.  £//ij,  13  Hun  (N.  Y.) 

Cleveland,  7  Abb.   (N.  Y.)  Pr.  339,  655. 

16  How.  (N.  Y.)   Pr.  364.  ^^  Rosa  v.   Jenkins,  31   Hun    (N. 


§  988] 


FEES,     COSTS     AND    DISBURSEMENTS. 


1375 


allows  costs  under  a  mistaken  idea  of  the  law,  it  is  the  duty 
of  the  appellate  court  to  correct  the  error. ^^ 

In  Xew  York,  the  discretion  of  the  trial  judge  in  an  action 
to  foreclose  a  mortgage  will  not  be  interfered  with  on  appeal 
to  the  general  term,  except  in  cases  of  abuse  or  gross  error, 
in  which  recognized  equities  and  rights  were  disregarded.^^ 

§  988.  Who  may  recover  costs. — A  judgment  for  costs 
may  be  entered  in  favor  of  any  party  to  the  action.^^  As  a 
general  rule,  the  mortgagee  is  entitled  to  his  costs  of  the  suit, 
whether  he  is  plaintiff  or  defendant.^'  If,  however,  he  has 
been  guilty  of  improper  conduct,  the  court  may  not  only  re- 
fuse him  costs,  but  may  compel  him  to  pay  the  costs  of  the 
action.*^*  Thus,  if  the  action  was  occasioned  by  the  unreason- 
able or  fraudulent  conduct  of  the  mortgagee,  he  will  be  liable 
for  its  costs. ^® 

All  defendants,  who  properly  appear  and  answer,  are  en- 
titled to  their  costs,  as  a  rule.  But  where  several  defendants 
have  the  same  solicitor,  they  will  not  be  allowed  to  swell  the 
costs  by  filing  separate  answers.^"  This  rule  is  different  in 
New  York,  where  the  plaintiff  alone  can  tax  a  bill  of  costs 
against  the  mortgaged  premises. 

In  the  case  of  McCormick  v.  Bauer ,^^  where,  bv  the  failure 


Y.)   384;   Woodford  v.  Bucklin,  14 
Hun  (N.  Y.)  444. 

^*  Morris  v.    Wheeler,   45    N.    Y. 
708. 

2B  House 
(N.  Y.)  90. 


Hun 


V.    Eisenlord,    30 
See  ante,  §  985. 

26  Garr  v.  Bright,  1  Barb.  Ch.  (N. 
Y.)  257.  See  Matheson  v.  Rogers, 
84  S.  C.  458.  65  S.  E.  1054. 

^  Concklin  v.  Coddington,  12  N. 
J.  Eq.  (1  Beas.)  250,  72  Am.  Dec. 
393.  See  Hurd  v.  Callahan,  9  Abb. 
(N.  Y.)  N.  C.  374;  Berlin  Building 
&  L.  Assoc.  V.  Clifford,  30  N.  J.  Eq. 
(3  Stew.)  482;  Young  v.  Young,  17 
N.  J.  Eq.  (2  C.  E.  Gr.)  161. 


^^  Pratt  V.  Stiles,  9  Abb.  (N.  Y.) 
Pr.  150,  17  How.  (N.  Y.)  Pr.  211; 
Large  v.  Van  Doren,  14  N.  J.  Eq. 
(1  McCart.)  208;  Concklin  v.  Cod- 
dington, 12  N.  J.  Eq.  (1  Beas.) 
250,  72  Am.  Dec.  393;  Detillin  v. 
Gale,  7  Ves.  583.  Compare,  Bath- 
gate   V.    Haskin,   63    N.    Y.    261. 

^Saunders  v.  Frost,  22  Mass.  iS 
Pick.)  259,  16  Am.  Dec.  394. 

8°  Danbury  v.  Robinson,  14  N.  J. 
Eq.  (1  McCart.)  324. 

31 122  111.  573,  13  N.  E.  852. 


1376  MORTGAGE    FORECLOSURES.  [§    989 

of  A  to  record  an  assignment  to  him  of  a  mortgage  for  pur- 
chase money,  it  had  become  subordinated  to  a  trust  deed  given 
by  the  original  mortgagee  after  reconveyance  to  him;  and 
appellants,  claiming  under  subsequent  trust  deeds,  sought  to 
enforce  their  liens  against  lots, — successfully  so  far  as  the  first 
trust  deed  is  concerned, — and  made  no  attempt  to  get  rid  of 
A's  mortgage,  it  was  held  the  appellants  cannot  claim  that, 
because  they  have  incidentally  benefited  the  appellees,  who 
claim  through  A,  the  appellees  shall  reimburse  them  the  ex- 
penses of  the  litigation. 

§  989.  Prior  mortgagee  entitled  to  costs. — A  prior 
mortgagee,  who  has  been  properly  made  a  defendant  for  the 
purpose  of  having  the  amount  of  his  claim  ascertained,  is 
entitled  to  a  bill  of  costs,^^  and  the  same  is  true  where  such 
mortgagee  has  oeen  improperly  joined  as  a  party  to  the 
action.  In  the  first  case,  he  is  entitled  to  have  his  costs  paid 
out  of  the  property,  and  in  the  latter,  to  have  them  taxed 
against  the  plaintiff  personally.^^ 

Where  a  prior  mortgagee  is  made  a  party  to  an  action  for 
foreclosure,  brought  by  a  second  mortgagee,  he  is  entitled 
to  have  his  taxable  costs  first  paid  out  of  the  proceeds  of 
the  sale,  and  if  the  second  mortgagee  wishes  to  save  such 
costs,  he  must  tender  the  prior  mortgagee  the  amount  due 
on  his  mortgage.^*  Such  a  prior  mortgagee  will  not  forfeit 
his  right  to  costs  by  setting  up  in  his  answer,   in  addition 

^^  Boyd  V.  Dodge,   10  Paige   Ch.  ^^  Millandon  v.  Brugiere,  II  Fa\ge 

(N.   Y.)    42;    Vroom  v.  Ditmas,  4  Ch.    (N.   Y.)    163;   Boyd  v.  Dodge 

Paige    Ch.    (N.    Y.)    526;    Slee   v.  10  Paige  Ch.   (N.  Y.)  42. 

Manhattan  Ins.  Co.  1  Paige  Ch.  (N.  ^^Concklin  v.  Coddington,  12  N. 

Y.)    48;    Berlin   Building   &   Loan  J.  Eq.   (1  Beas.)  250,  72  Am.  Dec. 

Assoc.  V.  Clifford,  30  N.  J.  Eq.   (3  393. 
Stew.)   482;   Lithauer  v.   Royle,  17 
N.  J.  Eq.  (2  C.  E.  Gr.)  40. 


§    989]  FEES,     COSTS    AND    DISBURSEMENTS.  1377 

to  his  mortgage,  an  interest  in  the  premises  acquired  under 
a  tax  sale,  even  if  such  claim  is  decided  against  him.^^ 

But  it  is  thought,  that  if  such  prior  mortgagee  puts  in  an 
answer  and  compels  the  plaintiff  to  prove  his  case,  and  there- 
by unnecessarily  increases  the  costs,  where  the  right  of  such 
mortgagee  might  have  been  properly  protected  by  an  appear- 
ance on  the  reference  to  compute  the  amount  due,  he  will  not 
only  be  denied  his  costs,  but  may  properly  be  called  upon  to 
pay  the  costs  consequent  upon  such  conduct.^^ 

The  court  of  chancery  of  New  Jersey,  in  the  case  of  Scott 
V.  Somers,^'  say  that  where  the  owner  of  different  lots  gives 
separate  mortgages  on  the  several  lots  to  different  persons, 
and  afterwards  gives  a  single  mortgage  on  all  the  lots  to 
another  person,  and  the  holder  of  the  last  mortgage  on  all 
the  lots  files  a  bill  to  foreclose,  and  makes  prior  mortgagees 
of  each  lot  parties  defendant,  and  they  appear  and  prove 
their  mortgages,  and  upon  the  sale  not  enough  is  realized  to 
pay  the  amount  of  the  first  mortgage,  costs  must  be  borne  by 
such  prior  mortgagees  in  proportion  to  the  amount  realized 
by  them  respectively.  In  this  case  the  proceedings  by  the 
complainant  were  of  great  advantage  to  the  several  prior  mort- 
gagees. He  procured  a  sale  of  all  the  lots  at  about  what 
it  would  have  cost  each  one  of  the  prior  mortgagees  to  sell  one 
lot.  In  other  words,  it  was  a  saving  of  about  three-fourths 
of  the  cost  to  each  one  of  the  prior  mortgagees.  When  these 
prior  incumbrancers  were  made  parties,  they  might  each  have 
asked  to  be  dismissed  with  costs.^'  But  it  is  well  settled  that 
in  all  cases  where  a  prior  incumbrancer,  instead  of  asking  to 
be  dismissed,  consents  to  a  sale,  and  to  take  his  principal  and 
interest  out  of  the  proceeds,  he  must,  as  he  thereby  adopts  the 
suit,  and  takes  the  benefit  of  it,  contribute  to  the  cost  of  it. 
In  such  a  case  the  costs  of  all  parties  will  be  paid  out  of  the 

^^Concklin  v.  Coddington,  12  N.  ^^  Barnard  v.  Bruce,  21  How.  (N. 

J.  Eq.    (1  Beas.)   250,  72  Am.  Dec.       Y.)  Pr.  360. 
393.  379  Atl.  (X.  J.  Ch.)  718. 

38  See  Dan.  Chan.   Pr.   1390. 
Mortg.  Vol.  II.— 87. 


1378  MORTGAGE    FORECLOSURES.  [§    990 

fund,  even  though  there  may  not  be  enough  left  to  pay  the 
prior  incumbrancer  his  principal  ^nd  interest.^' 

§  990.  Costs  to  subsequent  incumbrancers. — A  subse- 
quent incumbrancer  was  formerly  entitled  to  a  bill  of  costs 
in  a  mortgage  foreclosure.*"  But,  if  subsequent  incumbrancers 
unnecessarily  appeared  and  answered,  they  were  not  entitled 
to  costs  until  the  plaintiff's  debt  and  costs  had  been  paid." 
Now,  however,  a  junior  lienor  is  rarely  allowed  a  bill  of  costs. 

If  the  claims  of  subsequent  incumbrancers  are  correctly 
set  forth  in  the  complaint  for  the  foreclosure  of  a  prior  mort- 
gage, it  will  not  be  necessary  for  them  to  appear,  because 
their  rights  will  be  fully  protected  under  the  decree ;  and  it  has 
been  said,  that  where  the  appearance  of  such  an  incumbrancer, 
though  proper,  is  not  necessary,  the  plaintiff,  upon  receiving 
the  amount  due  him,  may  discontinue  as  against  subsequent 
incumbrancers  who  have  appeared,  without  costs  to  them.*^ 

By  the  rules  and  the  course  of  practice  of  the  court  of  chan- 
cery of  New  York,  a  subsequent  incumbrancer  was  not  en- 
titled to  costs  until  the  debts  and  costs  of  all  prior  incum- 
brancers had  been  satisfied.*' 

§  991.  Costs  on  two  foreclosures  against  same  prop- 
erty.— In  Wendell  v.  Wendell,**  where  there  were  two 
separate  mortgages  on  the  same  property,  belonging  to  dif- 
ferent mortgagees,  and  the  holder  of  the  first  mortgage  filed 
a  bill  of  foreclosure  against  the  second  mortgagee  and  the 
owners  of  the  mortgaged  premises,  and  the  same  solicitor 

^^  Scott  V.   Somers    (N.  J.    Ch.)  *^  Gallagher    v.    Egan,    2    Sandf. 

9  Atl.  718;  Scattergood  v.  Keeley,  (N.  Y.)  742. 

40  N.  J.  Eq.  (13  Stew.)  491,  4  Atl.  ^^  Boyd  v.  Dodge,   \0   Paige   Ch. 

440.                                                    -  (N.  Y.)   42;  Lithauer  v.  Royle,  17 

40  Young  v.   Young,  17  N.  J.  Eq.  N.  J.  Eq.  (2  C.  E.  Gr.)  40,  44.    See 

(2  C.  E.  Gr.)   161.  Smack  v.  Duncan,  4  Sandf.  Ch.  (N. 

«  Barnard  v.  Bruce,  21  How.  (N.  Y.)  621. 

Y.)  Pr.  360;  Merchants'  Ins.  Co.  v.  4*3  Paige  Ch.  (N.  Y.)  509. 
Marvin,  1  Paige  Ch.   (N.  Y.)   557. 


§    992]  FEES,     COSTS    AND    DISBURSEMENTS.  1379 

filed  another  bill  in  behalf  of  the  second  mortgagee,  against 
the  first  mortgagee  and  the  owners  of  the  premises,  to  fore- 
close the  second  mortgage,  the  court  held,  that  only  one  bill 
of  foreclosure  was  necessary,  and  that  the  owners  of  the 
equity  of  redemption  could  be  charged  with  the  costs  of  one 
suit  only.*^  This  decision  is  based  upon  the  principle,  that 
where  an  action  is  unnecessarily  brought,  or  where  the  relief 
asked  for,  might  have  been  obtained  by  an  application  to  the 
court  on  a  motion  in  a  case  already  pending,  the  party  com- 
mencing such  action  cannot  recover  costs.^® 

But,  where  a  subsequent  incumbrancer  cannot  secure  the 
relief  desired,  by  an  application  in  a  suit  already  pending, 
the  above  rule  does  not  apply.  Thus,  where  a  second  mort- 
gagee is  unable  to  secure  the  relief  prayed  for, — that  is.  to 
obtain  a  satisfaction  of  his  mortgage, — in  a  suit  already  pend- 
ing for  the  foreclosure  of  a  prior  mortgage,  because  of  an 
injunction  staying  the  sale  in  such  suit,  he  will  be  entitled 
to  his  costs  in  an  independent  action  to  foreclose.*'^ 

§  992.  When  costs  not  allowed  to  mortgagee. — While 
a  mortgagee  plaintiff  is  generally  entitled  to  costs,  yet  he  will 
not  be  allowed  costs  if  the  foreclosure  is  defective,  on  account 
of  his  errors  in  the  conduct  of  the  proceedings,  whereby  a 
new  foreclosure  is  rendered  necessary.*^ 

Where  a  mortgagee,  by  his  refusal  to  accept  the  mortgage 
debt  when  tendered,  or  by  interposing  groundless  objections 
to  a  redemption,*^  compels  the  mortgagor  or  his  assignee  to 
resort  to  an  action,  he  will  not  be  allowed,  but  on  the  contrary, 
may  sometimes  be  compelled  to  pay  costs.^°  Where  the  plain- 
ts 7/!ow/>jo«  V.  Skeen,  14  Utah,  Y.)  518,  aff'd  51  How.  (N.  Y.)  Pr. 
209,  46  Pac.  1103.  270. 

46  Roosevelt  v.  Ellithorp,  10  Paige  «  Clark  v.  Stilson,  36  Mich.  482. 

Ch.   (N.  Y.)  415;  De  LaVergne  v.  *9  See  Costigan  v.  Costigan,  20  R. 

Evertson,  1  Paige  Ch.  (N.  Y.)  181,       I.  535,  40  Atl.  341. 
19  Am.  Dec.  411.  ^^  Slcc  v.  Manhattan  Co.  1  Paige 

*'' Bache  v.   Purcell,  6  Hun    (N.       Ch.    (N.    Y.)    48.      See    Vroom    v. 

Ditmas,  4  Paige  Ch.  (N.  Y.)  535. 


1380  MORTGAGE    FORECLOSURES.  [§    993 

tiff  in  a  mortgage  foreclosure,  unnecessarily  sets  out  the  rights 
of  the  several  defendants  at  length,  the  extra  costs  occasioned 
thereby  will  not  be  allowed  on  taxation. ^^ 

§  993.  When  costs  not  allowed  to  defendants. — Costs 
will  not  be  allowed  to  a  defendant  who  unnecessarily  an- 
swers; ^^  and  where  an  action  has  been  unreasonably,  unjustifi- 
ably or  improperly  defended,  so  that  unnecessary  expenses 
have  been  incurred,  it  is  thought  that  the  court  may.  in  its 
discretion,  order  the  costs,  or  such  part  of  them  as  may  be 
proper,  to  be  paid  personally  by  the  contesting  party;  other- 
wise the  costs  of  the  prevailing  party  should  be  paid  from  the 
fund.^' 

§  994.  Notice  of  no  personal  claim. — It  has  been  seen,^* 
that  the  plaintiff  in  a  mortgage  foreclosure  may  relieve  him- 
self of  the  expense  of  unnecessary  disclaimers,  by  defendants 
who  are  made  parties  to  the  action  solely  for  the  purpose 
of  extinguishing  their  claims  and  of  perfecting  the  title,  by 
serving  upon  them  a  notice  that  no  personal  claim  is  made 
against  them;  if  any  defendant,  served  with  such  a  notice, 
imnecessarily  defends,  he  will  be  personally  liable  for  costs 
to  the  plaintiff.^*  A  notice  of  no  personal  claim  is  required, 
although  a  copy  of  the  complaint  may  have  been  served. ®® 

But  it  is  thought  that  the  neglect  of  the  plaintiff"  to  serve 
a  notice  of  no  personal  claim,  will  not  deprive  the  court  of 

61  Union  Ins.   Co.  v.    Van  Reus-  54  See  ante,   §   261 ;   N.   Y.    Code 

selaer,  4  Paige  Ch.  (N.  Y.)  85.  Civ.  Proc.  §  423. 

^^  Rood    V.     Winslow,     2     Doug.  ^^  Barker  v.  Burton,  67  Barb.  (N. 

(Mich.)  68.  Y.)    458;    O'Hara    v.    Brophy,    24 

^^Millandon  v.  Brugierc,  11  Paige  How.   (N.  Y.)   Pr.  379;  Benedict  v. 

Ch.  i^.Y.)  \6Z;  Boyd  V.Dodge,  \Q  Warriner,    14    How.    (N.    Y.)    Pr. 

Paige    Ch.    (N.    Y.)    42;    Bank    of  570;    Gallagher  v.   Egan,  2   Sandf. 

Plattsburg  v.  Piatt,  1  Paige  Ch.  (N.  (N.  Y.)    742;  Adams  v.  Myers.  61 

Y.)  464;  In  re  Wright,  16  Fed.  482,  Wis.  385. 

485.  ^^  O'Hara    v.    Brophy,    24    How. 

(N.  Y.)   Pr.  2,79. 


§    996]  FEES,     COSTS    AND    DISBURSEMENTS.  1381 

power  to  award  costs  against  a  defendant  who  unnecessarily 
or  unreasonably  defends." 

§  995.  Effect  of  excessive  demand  in  the  complaint. — 

The  fact,  that  a  mortgagee  demands  a  larger  sum  in  his  com- 
plaint than  the  court  finally  decides  he  is  entitled  to  receive, 
is  no  ground  for  refusing  him  a  bill  of  costs.®*  The  court 
held,  in  Loftus  v.  Swift,®^  that  "a  mortgagee  is  always  con- 
sidered as  entitled  to  costs,  unless  there  be  something  of 
positive  misconduct.  Merely  extending  his  claim  beyond  what 
the  court  finally  decides  he  is  entitled  to,  is  no  ground  for  re- 
fusing him  his  costs."  If,  however,  he  has  acted  oppressively 
in  demanding  a  larger  sum  than  was  due  on  his  mortgage,  and 
the  mortgagor  has  been  diligent  in  endeavoring  to  ascertain 
from  him  the  amount  of  the  incumbrance,  in  order  to  pay  it. 
costs  will  be  denied  to  him,  and  possibly,  in  some  cases, 
awarded  against  him.^° 

§  996.  Effect  of  tender  after  action  brought. — Usually 
a  tender  of  the  payment  of  a  debt,  at  its  maturity,  releases 
the  party  making  such  tender  from  liability  for  interest  and 
costs  thereafter;  but  it  seems  that  in  New  York,"  a  mort- 
gagor cannot  make  and  plead  a  tender  in  a  mortgage  fore- 
closure, for  the  reason  that  a  tender  to  be  good,  must  be  com- 

^T  Gallagher    v.    Egan,    2    Sandf.  (1   McCart.)   208;  Detillin  v.  Gale, 

(N.  Y.)  742.  7  Ves.  583. 

^*  Concklin  v.  Coddington,  12  N.  61  Jn  New  York  it  was  formerly 

J.  Eq.    (1  Beas.)  250,  72  Am.  Dec.  held,  that  a  tender  made  no  differ- 

393 ;  Loftus  v.  Swift,  2  Sch.  &  L.  ence   in   the   amount    of   the   costs.. 

.642.  Bartow  v.  Clevelatid,  16  How.   (X. 

59  2  Sch.  &  L.  657,  and  this  Ian-  Y.)    Pr.  364,  7  Abb.    (N.  Y.)    Pr. 

guage   is   approved   in   the  case  of  339;    Pratt   v.    Ramsdell,    16   How. 

Concklin   v.    Coddington,   12   N.   J.  (N.  Y.)  Pr.  59,  62,  7  Abb.  (N.  Y.) 

Eq.  (1  Beas.)  250,  72  Am.  Dec.  393.  Pr.    340n ;    Stevens    v.    Veriane.    2 

^  Van     Buren     v.     Olmstead,     5  Lans.   (N.  Y.)  90.     But  these  cases 

Paige  Ch.  (N.  Y.)  9;  Vroom  v.  Dit-  were  overruled  in  Bathgate  v.  Has- 

mas,   4    Paige    Ch.    (N.    Y.)    526;  kin,  63  N.  Y.  261. 
Large  v.  Van  Doren,  14  N.  J.  Eq. 


1382  MORTGAGE    FORECLOSURES.  [§    996 

plete,  and  include  not  only  the  money  due  on  the  demand,  but 
also  all  costs,^^  and  the  costs  in  a  mortgage  foreclosure,  rest- 
ing in  the  discretion  of  the  court,  are  uncertain.^^ 

The  New  York  Code  of  Civil  Procedure  provides,®*  that 
where  a  complaint  demands  judgment  for  a  sum  of  money 
only,  which  sum  is  certain  or  may  be  reduced  to  certainty  by 
calculation,  the  defendant  or  his  attorney  may,  at  any  time 
before  the  trial,  tender  to  the  plaintiff,  or  his  attorney,  such 
a  sum  of  money  as  he  conceives  will  be  sufficient  to  pay  the 
plaintiff's  demand,  together  with  the  costs  of  the  action  to 
that  time.  But  it  is  said  that  this  rule  is  confined  to  actions 
at  law,  and  for  that  reason  does  not  affect  actions  brought  for 
the  foreclosure  of  mortgages.®^ 

Yet,  it  is  thought  that  a  mortgagor,  or  the  owner  of  the 
equity  of  redemption,  may  relieve  himself  from  all  liability 
for  the  payment  of  interest  and  costs,  by  tendering  to  the 
plaintiff  the  amount  due  upon  the  mortgage,  together  with 
such  costs  as  he  thinks  sufficient;  upon  refusal  of  the  plaintiff 
to  accept  the  amount,  the  mortgagor  may  apply  to  the  court 
for  leave  to  pay  the  amount  due,  and  such  costs  as  the  court 
in  its  discretion  may  allow,  into  court,  and  upon  such  pay- 
ment the  court  will  either  order  the  action  discontinued  or 

62  See   Fuller  v.   Brown,   167   111.  50  S.  E.  790.     See  also  Carwile  v. 

293,  47  N.  E.  202;  Healy  v.  Protec-  Crump,   165   Ala.  206,  51    So.   744; 

tion  Mutual  Fire  Ins.  Co.  213  111.  Klokke  v.  Escailler,  124  Cal.  297,  56 

99,     72     N.     E.     678;     Neiman    v.  Pac.  1113. 

Wheeler,  87  111.  App.  670.     See  also  63  Bartow    v.    Cleveland,    7    Abb. 

McClung  v.  Missouri  Trust  Co.  137  (N.  Y.)   Pr.  339,  16  How.  (N.  Y.) 

Mo.  106,  38  S.  W.  578.  Pr.  364;  Thurston  v.  Marsh,  5  Abb. 

Including  attorney's  fee.    Neiman  (N.  Y.)   Pr.  389,  14  How.  (N.  Y.) 

V.  Wheeler,  87  111.  App.  670;  Witt-  Pr.  572;  Pratt  v.  Ramsdell,  16  How. 

meir  v.  Tidwell,  147  Ala.  354,  40  So.  (N.  Y.)  Pr.  59. 

963;    Healy    v.    Protection    Mutual  64  n.  y.  Code  Civ.  Proc.  §  731. 

Fire  Ins.  Co.  213  111.  99,  72  N.  E.  See  also  §§  1634,  1635. 

678;  Brand  V.  Kleinecke,  as  trustee,  ^^New    York    Fire    Ins.    Co.    v. 

etc.    77    111.    App.    269;    Fuller    v.  Burrell,  9  How.    (N.  Y.)    Pr.  398. 

Brown,  167  111.  293,  47  N.  E.  202 ;  See  also  Rollins  v.  Barnes,  23  App. 

Easton  v.  Woodbury,  71  S.  C.  250,  Div.  240,  48  N.  Y.  Supp.  779. 


§    998]  FEES,    COSTS    AND    DISBURSEMENTS.  1383 

stay  all  proceedings  therein.®^  Where  a  tender  is  made  be- 
fore judgment,  and  the  parties  themselves  do  not  mutually 
arrange  the  costs,  either  party  may  apply  to  the  court  for  the 
taxation  thereof.®' 

§  997.  Costs  on  default. — Where  judgment  is  taken  by 
default  in  a  mortgage  foreclosure,  costs  will  be  allowed  as 
provided  in  sections  3251,  and  3252  of  the  New  York  Code  of 
Civil  Procedure;  and  it  has  been  held,  that  the  fact,  that  a 
tender  of  the  amount  due  was  made,  will  not  make  any  differ- 
ence as  to  the  amount  to  be  allowed.®^ 

§  998.  Costs  allowed  guardian  ad  litem. — In  New  York 

the  compensation  allowed  to  a  guardian  ad  litem  in  an  equit- 
able action,  is  not  dependent  upon  any  provision  of  the  Code. 
It  was  the  practice  of  the  court  of  chancery  to  compensate 
such  guardian,  for  the  services  actually  performed  by  him  in 
the  protection  of  the  infant's  interests,  by  allowing  him  to 
recover  costs  out  of  the  proceeds  of  the  sale,  not  exceeding  the 
taxable  items  prescribed  for  such  services.®^ 

It  is  a  general  rule,  that  the  guardian  ad  litem  of  an  infant 
defendant  can  be  allowed  only  taxable  costs  as  against  a  fund 
belonging  to  the  other  parties  to  the  action^"  Where  an 
extra  allowance  is  made  to  the  guardian  ad  litem  of  infant 
defendants,  in  a  mortgage  foreclosure,  it  must  be  paid  out 
of  their  share,  since  only  the  taxable  costs  can  be  charged 

66  Bartow   v.    Cleveland,    7    Abb.  Pr.  339 ;  Pratt  v.  Ramsdell,  16  How. 

(N.  Y.)  Pr.  339,  16  How.  (N.  Y.)  (N.  Y.)  Pr.  59,  7  Abb.  (N.  Y.)  Pr. 

Pr.  364.    See  N.  Y.  Code  Civ.  Proc.  340n ;  Stevens  v.    Veriane,  2  Lans. 

§§  1634,  1635.  (N.    Y.)    90.      But    see   Adams   v. 

^Bartow    v.    Cleveland,    7    Abb.  Myers,  61   Wis.  385. 

(N.  Y.)  Pr.  339,  16  How.  (N.  Y.)  ^^Weed   v.   Paine,  31    Hun    (N. 

Pr.  364;  Stevens  v.  Veriane,  2  Lans.  Y.)  10.  13  Abb.  (N.  Y.)  N.  C.  200; 

(N.  Y.)  90;  Pratt  v.  Ramsdell,  16  Gott  v.  Cook,  7  Paige  Ch.  (N.  Y.) 

How.   (N.  Y.)   Pr.  59.    See  Morris  521,  544;   Union  Ins.  Co.  v.  Rens- 

V.   Wheeler,  45  N.  Y.  708.  selaer,  4  Paige  Ch.  (N.  Y.)  85. 

68  Bartow  v.  Cleveland,  16  How.  '"  Union   Ins.    Co.  v.   Rensselaer, 

(N.  Y.)    Pr.  364,  7  Abb.    (N.  Y.)  4  Paige  Ch.   (N.  Y.)   85. 


1384 


MORTGAGE    FORECLOSURES. 


[§  999 


Upon  that  portion  of  the  fund  which  belongs  to  other  parties.''^ 
But  only  very  special  circumstances  will  authorize  a  court  to 
allow  anything  beyond  the  taxable  costs  of  the  guardian 
ad  litem,  to  be  charged  upon  a  fund  belonging  to  an  infant.'^ 

§  999.  Costs  on  appointment  of  receiver. — Where  it  is 
found  necessary  to  appoint  a  receiver  to  take  charge  of  the 
mortgaged  premises  or  to  collect  the  rents  and  profits  there- 
of during  the  pendency  of  the  action,  the  costs  of  the  motion 
for  the  appointment  of  such  receiver  are  sometimes  reserved 
until  the  hearing/^  even  where  the  application  therefor  is 
refused ;  '''*  but  the  court  may,  in  its  discretion,  deal  with  the 
costs  of  a  motion  for  a  receiver  at  the  time  of  the  appli- 
cation ;  '^  or  the  costs  of  the  application  may  be  ordered  to 
be  taxed  with  the  costs  of  the  action.'® 

§  1000.  Costs  on  resale. — Where  a  sale  is  reported  by 
the  officer  conducting  it,  and  the  purchaser  refuses  to  comply 
with  its  terms,  the  court  may,  upon  representations  by  the 
plaintiff,  or  other  parties  in  interest,  order  that  cause  be  shown 
why  the  terms  of  the  sale  should  not  be  complied  with;  if 
sufficient  cause  is  not  shown,  it  may,  considering  all  the  cir- 
cumstances of  the  case,  either  ratify  the  sale  or  set  it  aside,  as 
will  best  subserve  the  interests  of  the  parties  concerned.''^ 
And  in  such  a  case,  if  the  sale  is  set  aside,  the  court  may 
properly  impose  upon  the  party  reported  as  purchaser,  all  the 


'1  Downing  v.  Marshall,  2)7  N.  Y. 
391 ;  Union  Ins.  Co.  v.  Rensselaer, 
4  Paige  Ch.  (N.  Y.)  85. 

"^^  Union  Ins.  Co.  v.  Rensselaer, 
4  Paige  Ch.  (N.  Y.)  85.  See  also 
Seits  V.  Schrell,  30  App.  Div.  211,  51 
N.  Y.  Supp.  608. 

'8  Chaplin  v.  Young,  6  L.  T.  N. 
S.  97. 

"^^  Baxter  v.  West,  28  L.  J.  Ch. 
169;  Coope  v.  Creswell,  12  W.  R. 
299. 


''^  Goodman  v.  White,  1  Jac.  & 
W.  593;  IVilson  v.  Wilson,  18  Jur. 
581 ;  Skinner's  Company  v.  Irish 
Society,  1  M.  &  C.  169;  Fall  v. 
Elkins,  9  W.  R.  861. 

'6  Bowker  v.  Henry,  6  L.  T.  N.  S. 
43;  Topping  v.  Searson,  6  L.  T.  N. 
S.  449 ;  Fall  v.  Elkins,  9  W.  R.  861. 

"^"^  Schaefer  v,  O'Brien,  49  Md. 
253. 


§     1001]  FEES,    COSTS    AND    DISBURSEMENTS.  1385 

costs  and  expenses  attending  tthe  sale,  as  the  condition  of 
releasing  him  from  his  bid  and  the  consequences  of  his  de- 
fault.'« 

§  1001.  Who  personally  liable  for  costs, — It  was  said  by 
Lord  Eldon,  in  the  case  of  Detillen  v.  Gale.'^  that  "it  is  ad- 
mitted that  there  is  no  instance  in  which  a  mortgagee  has 
been  called  upon  to  pay  costs;"®"  but  it  is  thought  that  the 
mortgagee  may  be  required  to  pay  costs,  if  he  has  rejected  a 
tender  of  the  full  amount  due  him,  together  with  his  costs,  or 
if  the  litigation  has  in  any  way  been  occasioned  by  his  fraud 
or  mistake.®^  Where  the  plaintiff  in  a  mortgage  foreclosure 
so  misstates  the  rights  of  a  defendant  as  to  render  it  necessary 
for  him  to  put  in  an  answer  to  protect  his  rights,  the  plaintiff 
may  be  personally  charged  with  the  extra  costs  occasioned 
thereby.®^ 

The  mortgagor,  or  any  other  party  to  the  action,  who  un- 
necessarily defends  it,  may  be  charged  personally  with  the 
costs,  for  the  benefit  of  those  entitled  to  the  surplus.®^  Thus, 
costs  are  properly  imposed  against  a  subsequent  incumbrancer 
who  defends  against  a  bill  of  review  filed  by  a  principal  de- 
fendant, and  maintains  the  supplemental  litigation  in  opposi- 
tion to  the  terms  of  a  mortgage  binding  his  lands." 

It  has  been  held,  that  a  purchaser  of  a  portion  of  the 
mortgaged  premises  from  the  mortgagor,  should  pay  his 
portion  of  all  legitimate  costs  incurred  in  the  foreclosure  of 
a  mortgage  upon  such  lands ;  "  and  it  is  certain  that  a  sub- 

1^  Schafer  V.  O'Brien,  49  Md.  253.  ^^  Jones   v.    Phelps,   2    Barb.    Ch. 

797  Ves.  584.  (N.  Y.)  440;  Barnard  v.  Bruce,  21 

^'^ House    V.    Eisenlord,    30    Hun  How.    (N.  Y.)   Pr.  360;  O'Hara  v. 

(N.  Y.)  90.  Brophy,  24  How.   (N.  Y.)   Pr.  379. 

81  Pratt  V.  Stiles,  9  Abb.  (N.  Y.)  See  ante,  §  261. 

Pr.  150,  17  How.   (N.  Y.)   Pr.  211.  ^^Mickle   v.    Maxficld,   42    Mich. 

See  also  Bemus  v.  Thrall,  35  Misc.  304. 

137,  70  N.  Y.  Supp.  463.  85  Qj/cs  v.  Ruddick,  2  Iowa,  425, 

82  Unions  Ins.  Co.  v.  Rensselaer,  65  Am.  Dec.  774. 
4  Paige  Ch.   (N.  Y.)  85. 


1386  MORTGAGE     FORECLOSURES.  [§     1002 

sequent  purchaser  of  mortgaged  premises  may  make  himself 
personally  liable  for  costs,  although  he  may  not  be  liable  for 
the  payment  of  the  mortgage  debt,  if  he  makes  an  unreason- 
able and  unfounded  defence  to  the  suit,  and  the  property  is 
not  of  sufficient  value  to  pay  the  incumbrance.*^ 

§  1002.  Out  of  what  fund  costs  payable. — The  costs  of  a 
mortgage  foreclosure  are  usually  payable  from  the  proceeds 
of  the  sale  of  the  mortgaged  premises."  It  is  thought  that 
where  the  circumstances  of  the  case  require  it,  the  court 
may  direct  the  costs  to  be  paid  out  of  any  moneys  in  its 
custody,  belonging  to  any  of  the  parties  litigant,  and  subject 
to  the  lien  of  the  mortgage.**  Thus,  where  a  prior  mortgagee 
is  properly  made  a  party  to  a  foreclosure,  for  the  purpose  of 
ascertaining  the  amount  of  his  claim,  such  mortgagee  is 
entitled  to  his  costs,  to  be  paid  out  of  the  property,  or  by  the 
plaintiff  personally,  in  the  discretion  of  the  court.*' 

But  where  a  party  is  improperly  made  a  defendant,  his 
costs  must  be  paid  by  the  plaintiff  personally,®"  and  not  out 
of  the  general  fund.'^  Where  a  complaint  is  dismissed  as  to 
some  of  the  defendants,  the  costs  are  to  be  paid  by  the  plain- 
tiff, and  not  out  of  the  funds  raised  by  the  sale  of  the  mort- 
gaged premises.'* 

8fi  Danbury  v.  Robinson,  14  N.  J.  359.     But  see  Faison  v.  Hicks,  127 

Eq.  (1  McCart.)  324.  X.  C.  371,  37  S.  E.  511. 

^"^ Botsford  V.  Botsford,  49  Mich.  ^^Chamberlain    v.    Dempsey,    36 

29;  Carter  v.  Builders'  Construction  X.  Y.   144,  147;  Jones  v.  Phelps,  2 

Co.   130  App.   Div.  609,   115   X.  Y.  Barb.   Ch.    (X.   Y.)   440;  Mayer  v. 

Supp.  339;  Jennings  v.  Hare,  53  S.  Salisbury,  1  Barb.  Ch.  (X'^.  Y.)  546; 

C.  396,  31  S.  E.  282.  Boyd  v.  Dodge,  10  Paige  Ch.   (X. 

A   mortgage   is   a  lien   upon   the  Y.)  42. 

land   or   upon   the   surplus   moneys  ^ Millandon  v.  Brugiere,  II  Pa.ige 

for  costs  allowed  to  the  mortgagee.  Ch.  {N.  Y.)  163. 

Bushwick  Savings  Bank  v.  Traum,  ^^  Nelson  v.  Montgomery,  1  Edw. 

26  App.  Div.  532.  50  X.  Y.   Supp.  Ch.   CX.  Y.)  657. 

542.  ^2  Rosa  V.  Jenkins,  31   Hun    (N. 

88  Falkner  v.  Printing  Co.  74  Ala.  Y.)  384. 


§   1003] 


FEES,    COSTS    AND    DISBURSEMENTS. 


1387 


§  1003.  Counsel  fees  in  foreclosing  mortgages. — It  is 
the  general  rule,  that  a  reasonable  attorney's  fee  for  foreclos- 
ing a  mortgage,  beyond  the  costs  allowed  by  law,  may  be 
contracted  for  in  a  mortgage,  and  the  court  will  consider  the 
amount  stipulated  for  by  the  parties  to  be  reasonable,  unless 
it  is  extravagantly  large  and  extortionate,  so  as  to  show 
that  it  was  intended  as  a  penalty  to  be  held  in  terrorem 
over  the  mortgagor.®^    A  percentage  may  be  allowed  instead 


^^Munter  v.  Linn,  61  Ala.  492; 
Alden  v.  Pryal,  60  Cal.  215;  Claw- 
son  V.  Munson,  55  111.  394;  McLane 
V.  Abrams,  2  Nev.  207.  208;  Cox  v. 
Smith,  1  Nev.  161,  90  Am.  Dec. 
476;  Daly  v.  Maitland,  88  Pa.  St. 
384.  32  Am.  Rep.  457;  Hitchcock  v. 
Merrick,  15  Wis.  522 ;  Rice  v.  Cribb, 
12  Wis.  179.  Compare,  Ogborn  v. 
Eliason,  77  Ind.  393;  Alexandrie  v. 
Saloy,  14  La.  An.  Z27 .  But  see 
Gordon  v.  Decker,  19  Wash.  188,  52 
Pac.  856. 

In  McLane  v.  Abrams,  2  Nev. 
199,  a  stipulation  for  ten  per  centum 
on  the  amount  of  the  mortgage, 
$6,000.  was  not  regarded  as  unrea- 
sonable. In  Daly  v.  Maitland,  88 
Pa.  St.  384,  13  West.  Jur.  204,  a 
stipulation  for  a  commission  of  five 
per  centum  on  a  mortgage  of 
$14,000  was  considered  to  be  un- 
reasonable. Haldeman  v  Massa- 
chusetts Mut.  L.  Ins.  Co.  21  111. 
App.  146,  affd.  120  111.  390,  11  N. 
E.  526;  Culver  v.  Brinkerhoff,  180 
111.  548,  54  N.  E.  585;  Langley  v. 
Andrews,  142  Ala.  665,  38  So.  238; 
Guaranty  Savings  &  Loan  Ass'c.  of 
Minneapolis,  Minn.  v.  Ascherman, 
108  Iowa.  150,  78  X.  W.  823 ;  IVar- 
ren  v.  Soddart,  6  Idaho,  692,  59 
Pac.  540;  Uedelhofen  v.  Mason, 
201  III.  465,  66  N.  E.  364;  Healy 
V.  Protection  Mutual  Fire  Ins.  Co. 


213  111.  99,  72  N.  E.  678;  Salomon 
V.  Stoddard,  107  111.  App.  227.  See 
Lehman  v.  Comer,  89  Ala.  579,  8  So. 
241 ;  Hewitt  v.  Dean,  91  Cal.  5,  25 
Pac.  753;  Georgia  R.  &  Banking 
Co.  V.  Pendleton,  W  Ga.  751,  13  S. 
E.  822;  Butterfield  v.  Hungerford, 
68  Iowa,  249,  26  X.  W.  136;  Damon 
V.  Deeves,  62  Mich.  465,  29  N.  W. 
42;  M Jones  v.  Yellow  Medicine 
County  Bank,  45  Minn.  335,  47  X. 
W.  1072 ;  Candid  v.  Fowler,  47  Mo. 
App.  514;  Memphis  &  L.  R.  Co.  v. 
Dow,  120  U.  S.  287,  30  L.  ed.  595, 
7  Sup.  Ct.  Rep.  482;  Gravette  v. 
Canadian  &  American  Mortgage 
&  Trust  Co.  Ltd.  42  Wash.  457,  85 
Pac.  36;  O'Xeal  v.  Hart,  116  Cal. 
69.  47  Pac.  926;  Purvis  v.  Frink, 
57  Fla.  519.  49  So.  1023.  See  also 
Foster  as  adm'r,  etc.  v.  Honan,  22 
Ind.  App.  252,  53  N.  E.  667 ;  Pitzele 
v.  Cohn,  217  111.  30,  75  N.  E.  392; 
Toan  V.  Alexander,  185  111.  254,  56 
N.  E.  1111. 

In  California  a  mortgagee  provid- 
ing for  a  reasonable  attorney's  fee 
and  a  note  secured  thereby  provid- 
ing for  a  fee  of  5  per  cent,  must  be 
read  together  as  one  contract  limit- 
ing such  a  fee  to  5  per  cent. 
Hewitt  V.  Dean,  91  Cal.  5,  25  Pac. 
753. 

In  Illinois  an  agreement  in  a 
mortgage    for    ana    attorney's    fee 


1388 


MORTGAGE     FORECLOSURES. 


[§     1003 


of  a  fixed  sum  as  a  fee,  or  the  fee  may  be  stipulated  for  in 
blank.'* 

A  provision  in  a  mortgage,  that  the  mortgagor  shall,  in 
case  of  foreclosure,  pay  the  costs  and  "fifty  dollars  as  liqui- 
dated damages  for  the  foreclosure  of  the  mortgage,"  has 
been  held  to  be  void,  because  so  indefinite  that  the  court 
could  not  tell  whether  the  amount  was  for  something  legal 
or  illegal,  and  a  judgment  rendered  on  such  a  stipulation  for 
fifty  dollars  as  an  attorney's  fee,  was  declared  erroneous.'* 
But  a   stipulation   that   the   mortgagee   shall   be   entitled   on 


which  is  reasonable  in  amount,  may 
be  taxed  as  a  part  of  the  costs  in  a 
suit  to  foreclose  the  mortgage. 
Such  an  agreement  is  valid  in  this 
state.  Haldeman  v.  Massachusetts 
Mut.  L.  Ins.  Co.  120  111.  390,  11  N. 
E.  526. 

Notice  of  sale  not  included — 
When. — The  right  of  a  lawyer  who 
is  trustee  in  an  ordinary  deed  of 
trust,  to  necessary  and  reasonable 
charges  and  expenses,  does  not  ex- 
tend to  an  attorney's  fee  for  writ- 
ing the  notice  of  sale,  neither  can 
he  employ  his  partner  to  do  it. 
Condict  V.  Flower,  47  Mo.  App.  514. 

Fee  must  be  paid  to  stop  fore- 
closure.— When  a  mortgage  con- 
taining a  stipulation  for  attorneys' 
fees  in  case  placed  in  an  attorney's 
hands  for  foreclosure,  and  the  no- 
tice is  drawn  by  him  and  set  up 
in  type  by  the  printer,  the  attor- 
neys' fees  and  printers'  charges 
become  part  of  the  mortgage  debt, 
so  that  the  mortgagor  cannot  stop 
the  foreclosure  by  paying  the  mort- 
gage without  paying  them.  Mjones 
V.  Yellow  Medicine  County  Bank, 
45  Minn.  335,  47  N.  W.  1072.  See 
ante,  §  983. 

A  mortgage  given  to  secure  a 
note  which  contains  a  provision  for 


an  attorney's  fee,  secures  the  at- 
torney's fee  also.  Bailey  v.  Butler, 
138  Ala.  153,  35  So.  Ill;  Peachy  v. 
Witter,  131  Cal.  316,  63  Pac.  468; 
Worth  V.  Worth,  155  Cal.  599,  102 
Pac.  663 ;  National  Bank  of  Cali- 
fornia V.  Mulford,  120  Pac.  446 
(Cal.  App.)  ;  County  Bank  of  San 
Luis  Obsipo  V.  Gold  tree,  129  Cal. 
160,  61  Pac.  785.  See  also  Dur- 
ham v.  Stephenson,  41  Fla.  112, 
25  So.  284;  Millsaps  v.  Chapman,  as 
rec'r,  etc.  76  Miss.  942,  71  Am.  St. 
Rep.  549,  26  So.  369 ;  Contra,  Evans 
V.  Mansure  &  Tebbetts  Implement 
Co.  87  Fed.  275  (Tex.) 

9*  Thus,  where  the  mortgage 
foreclosure  provided  for  "counsel 
fees  and  charges  of  attorneys  and 
counsel  employed  in  such  foreclo- 
sure suit,  not  exceeding  ," 

it  was  held  that  counsel  fees  were 
properly  allowed.  Alden  v.  Pryal, 
60  Cal.  215.  But  see  Johnson  v. 
Clcgg,  as  trustee,  etc.  121  III.  App. 
550. 

See  Woodward  v.  Brown,  119 
Cal.  283,  51  Pac.  2,  63  Am.  St. 
Rep.  108. 

95  Foote  V.  S Prague,  13  Kan.  155  ; 
Stover  v.  Johnnycake,  9  Kan.  367; 
Tholen  v.  Duffy.  7  Kan.  405;  Kurts 
V.  Sponable,  6  Kan.  395. 


§     1003]  FEES,    COSTS    AND    DISBURSEMENTS.  1389 

foreclosure,  "to  a  judgment  for  the  possession  of  said  prem- 
ises, and  costs,  expenses  and  an  attorney's  fee  of  ten  per 
centum  of  the  amount  due  for  foreclosing  said  mortgage,"  is 
valid;  and  on  a  mortgage  debt  of  $4,000,  or  less,  such  a  per- 
centage has  been  held  not  to  be  so  excessive  that  a  court  of 
equity  would  refuse  to  enforce  it.^® 

The  allowance  of  attorneys'  fee  without  proper  evidence  of 
the  amount  of  services  rendered  and  the  value  thereof  will 
be  erroneous.^'''  And  it  is  said  that  a  judgment  in  foreclo- 
sure is  erroneous  which  directs  the  payment,  out  of  the  pro- 
ceeds of  the  sale,  of  an  allowance  to  the  counsel  of  the  com- 
missioner w4io  sells  the  land.^^ 

In  those  cases  where  the  mortgage  provides  for  indemnify- 
ing the  mortgagee  or  trustee  against  all  costs,  charges  and 
expenses,  this  will  cover  a  reasonable  allowance  for  attorney's 
fees,  to  be  determined  by  the  court  or  chancellor  upon  the 
proper  proofs.®®  And  it  has  been  said  that  where  there  is  a 
stipulation  in  a  mortgage  in  which  the  mortgagor  agrees  to 
pay  the  attorney's  fee  and  other  expenses  incurred  by  the 
mortgagees  in  the  collection  of  the  several  sums  mentioned  in 
the  mortgage,  by  foreclosure  or  otherwise,  for  the  payment  of 
which  the  mortgage  is  a  lien,  although  contained  in  a  clause 
relating  more  especially  to  advances  other  than  the  leading 
consideration,  is  not  confined  to  attorneys'  fees  paid  in  the 
collection  of  such  other  sums,  but  extends  to  the  collection  of 
all  sums  accruing  to  the  mortgagees.^ 

In  some  of  the  states,  as  in  Michigan,  while  the  provision 

^^  Sharp  V.  Barker,   11   Kan.  381.  ^^  Gay  v.  Davis,  107  N.  C.  269,  12 

See    also     Thornton    v.    Common-  S.   E.   194. 

wealth  Loan  &  Building  Ass'c.  181  ^^  L'Engle  v.  L'Engle,  21  Fla.  131; 

111.  456,  54  N.  E.   1037;  Armijo  v.  Mem f  his  &  L.  R.  Co.  v.  Dow,  120 

Henry,    14   K.    M.    181,   25    L.R.A.  U.  S.  287,  30  L.  ed.  595,  7  Sup.  Ct. 

(N.S.)  275,  89  Pac.  305.  Rep.  482. 

^''  Butter  field   v.    Hungerford,   68  ^Lehman  V.  Comer,  89  Ala.  579, 

Iowa,    249;    Cook    v.    Gilchrist.    82  8  So.  241. 
Iowa,  736;  sub  nom.  Cook  v.  Short- 
hill,  48  N.  W.  84. 


1390  MORTGAGE     FORECLOSURES.  [§    1004 

for  an  attorney's  fee  on  foreclosure  of  a  mortgage,  contained 
in  the  power  of  sale,  is  operative  and  binding,  it  can  only 
be  enforced  by  a  statutory  foreclosure.^ 

In  the  supreme  court  of  Georgia,  in  the  case  of  Georgia 
Railroad  and  Banking  Copmany  v.  Pendleton,®  it  is  said  that 
indorsers  upon  a  note  secured  by  mortgage,  who,  after  judg- 
ment upon  the  note,  waive  in  writing  any  objection  to  a  clause 
in  the  mortgage  providing  for  attorneys'  fees,  cannot  insist 
that  a  judgment  foreclosing  the  mortgage  does  not  conclude 
them  as  to  the  creditor's  right  to  payment  of  such  attorneys' 
fees  out  of  the  proceeds  of  the  mortgaged  property. 

A  stipulation  in  a  mortgage,  for  the  payment  of  an  attor- 
ney's fee,  is  regarded  as  a  compensation  to  the  mortgagee  for 
expenses  incurred  by  the  default  of  the  mortgagor,  and  will 
not  be  relieved  against  in  equity,  if  fairly  entered  into,  unless 
it  is  evidently  a  penalty,  or  made  the  cloak  for  an  usurious 
contract.*  An  attorney's  fee  is  not  a  lien  upon  the  mortgaged 
property,^  unless  so  expressed  in  the  mortgage.^  Counsel  fees 
will  not  be  allowed  in  the  first  instance  by  the  appellate  court. "^ 

§  1004.  Counsel  fees  in  Kentucky  and  Michigan. — It 

seems  that  a  different  doctrine  prevails  in  Kentucky  ^  and 
Michigan.®    It  was  held  by  the  supreme  court  of  Michigan,  in 

^  Damon  v.  Deeves,  62  Mich.  465,  Liiddy  v.  Pavkovich,  137  Cal.  284, 

29  N.  W.  42.  70  Pac.  177. 

3  87  Ga.  751,  13  S.  E.  822.  ^  Haensel  v.  Pacific  State  Savings 

^  Daly    V.    Maitla)id,    88    Pa.    St.  &  Loan   &  Building   Co.   135   Cal. 

384,  32  Am.  Rep.  457;  Baker  v.  Aal-  41,  67  Pac.  38. 

berg,    183    111.   258,   55    N.    E.   672 ;  '  Fender  v.  Robinson,  135  Cal.  26, 

Baker  v.  Jacobson,  183  111.   171,  55  66  Pac.  969. 

N.  E.  724;  Springer  \.  Cochrane,  84  ^Rilling   v.    Thompson,    12    Bush 
111.    App.    644.     Compare,   Myer   v.  (Ky.)    310;    Thomasson   v.    Town- 
Hart,  40   Mich.   517,  25   Am.    Rep.  send,  10  Bush   (Ky.)    114. 
558.     See  Alden  v.   Pryal  60  Cal.  » Millard  v.  Truax,  50  Mich.  MZ 
215;  Scholey  v.  DeMattos,  18  Wash.  Botsford  v.  Botsford.  49  Mich.  29 
504,  52  Pac.  242.     See  also  Fidelity  Vosburgh    v.    Lay,    45    Mich.    455 
Savings  Ass'c.  v.  Shea,  6  Idaho,  405,  Parks  v.  Allen,  42  Mich.  482 ;  Mycr 
55   Pac.   1022.  v.  Hart,  40  Mich.  517,  29  Am.  Rep. 

5  Klokke  V.  Escailler,  124  Cal.  297 ;  553. 


§     1005]  FEES,    COSTS    AND    DISBURSEMENTS.  1391 

the  case  of  Vosburgh  v.  Lay/°  that  a  stipulation  in  a  mortgage 
fixing  in  advance  a  gross  allowance,  is  against  public  policy 
and  cannot  be  enforced;  and  that  this  is  specially  true,  where 
the  allowance  for  an  attorney's  fee  differs  from  that  author- 
ized by  statute." 

§  1005.  Stipulation  for  attorney's  fee — When  usuri- 
ous.— A  stipulation  in  a  mortgage,  that  the  mortgagor,  in 
addition  to  legal  interest,  shall  pay  to  the  mortgagee  an 
■  attorney's  fee  for  collecting  the  debt,  such  fee  to  be  taxed  in 
the  judgment,  will  not  render  the  agreement  usurious,  and 
may  be  enforced,^^  because  the  debtor,  by  neglecting  or  refus- 
ing to  pay  the  debt,  imposes  upon  the  mortgagee  the  expense 
of  resorting  to  law  to  enforce  his  rights,  and  it  is  only  just 
that  all  the  expenses  of  foreclosure  should  be  borne  by  the 
party  whose  wrong  has  made  it  necessary  to  incur  them.^^ 
But  such  a  stipulation  will  not  embrace  the  unnecessary  and 
useless  services  of  a  solicitor,  however  extensive  or  labor- 
ious.^* Where  such  a  stipulation  is  intended  as  a  gratuity,  or 
is  without  consideration,  or  is  inserted  as  a  cover  for  usury, 
which  is  prohibited  by  statute,  it  will  be  void.^* 

1"  45  Mich.  455.  In    Williams   v.    Meeker,   29    Iowa, 

11  The    court    held    in    this    case,  292,   an   attorney's   fee  of  $75   was 

that   "in  respect  to   all   proceedings  allowed.     Contra,  Rilling  v.  Thomp- 

of  this  nature,  and  which  are  ex-  son.  12  Bush    (Ky.)   310;   Thomas- 

ceptional    and    peculiar,    all    allow-  son   v.    Townsend,    10   Bush    (Ky.) 

ances   which   partake   of   the  char-  114. 

acter  of  fees  are  dependent  on  leg-  See  Hiiber  v.  Brown,  148  111.  App. 

islation,"  citing  Booth  v.  McQueen,  399. 

1  Doug.  (Mich.)  41.  ^^ Hitchcock  v.  Merrick,  15  Wis. 

^^Munter  v.   Linn,  61    .\la.   492;  522;   Rice   v.    Cribb,    12   Wis.    179; 

McGill    V.    Griffin,    32    Iowa,    445;  Boyd  v.  Summer,  \0  Wn.  A\;  Tall- 

Weatherby  v.  Smith.  30  Iowa.  131,  man  v.  Truesdell.  3  Wi^-.   443.  454. 

6  Am.  Rep.  663;  Nelson  v.  Everett,  ^^  Soles  v.  Sheppard,  99  111.  620. 

29  Iowa,  184;  Conrad  v.  Gibbon,  29  ^^  Soles  v.  Sheppard.  99  111.  616. 

Iowa,  120;  Gilmore  v.  Ferguson,  28  See  Fidelity  Savings  Ass'c.  v.  Shea, 

Iowa,    220;    Gower     v.     Carter,    3  6  Idaho.  405.  55  Pac.  1022. 

Clarke  (Iowa)  244,  66  Am.  Dec.  71. 


1392  MORTGAGE     FORECLOSURES.  [§    1006 

§  1006.  Allowance  of  attorney's  fee — Discretion  of 
court. — It  has  been  said,  that  the  allowance  of  an  attor- 
ney's fee  for  the  collection  of  a  mortgage,  is  in  the  nature  of 
a  penalty,  rather  than  of  liquidated  damages ;  ^®  and  that  it  is 
within  the  sound  discretion  of  the  court  in  which  the  mort- 
gage is  being  foreclosed,  to  determine  whether  the  whole,  or 
any  part  of  the  sum  stipulated  for  in  the  mortgage  as  a 
counsel  fee,  shall  be  included  in  the  judgment. ^"^  The  allow- 
ance of  the  stipulated  fee,  being  a  matter  of  discretion  with 
the  court,  cannot  be  reviewed  on  appeal,  unless  it  appears 
that  such  discretion  has  been  abused. ^^ 

The  supreme  court  of  Alabama  held,  in  Munter  v.  Linn,^^ 
that  in  case  of  such  a  stipulation,  a  reasonable  sum  only  can 
be  collected  as  an  attorney's  fee,  although  a  larger  sum  or 
per  centum  may  have  been  agreed  upon  by  the  parties.  And 
the  supreme  court  of  Mississippi  held,  in  the  case  of  Voecht- 
ing  V.  Grau,^°  that  where  a  mortgage  contains  a  stipulation, 
that  in  case  of  foreclosure,  the  mortgagor  will  pay  "in  addi- 

^^  Daly   V.    Maitland,   88    Pa.    St.  two    per    centum    on    the    amount 

384,    32    Am.    Rep.    457;    Huber   v.  found  due  on  the  mortgage  indebt- 

Brown,  148  111.  App.  399.     But  see  edness.  shall  be  allowed  and  includ- 

Scholey  v.  DeMattos,  18  Wash.  504,  ed  in  the  decree  as  a  solicitor's  fee, 

52  Pac.  242.  there    will   be   no    error   in    includ- 
^"^  Daly   V.    Maitland,   88    Pa.    St.  ing    such     a     fee     in    the    decree. 

384.  32  Am.  Rep.  457;  Reed  v.  Cat-  Mclntire  v.  Yates,  104  111.  491. 

lin,  49  Wis.  686;  Patten  v.  Pepper  A  mortgage  provided  for  the  al- 

Hotel  Co.  153  Cal.  460,  96  Pac.  296 ;  lowance  of  a  counsel  fee,   "at  the 

Hammond    v.    Erickson,    135    Wis.  rate    of   —   per   centum,    upon   the 

570,    116   N.   W.    173;   Edwards,  as  amount  which  may  be  found  to  be 

trustee,  etc.  v.  Grand,  121  Cal.  254.  due  on  principal  and  interest."    The 

53  Pac.  796.  See  Carriere  v.  Min-  court  allowed  one  hundred  and 
turn,  5  Cal.  435 ;  Insurance  Co.  v.  fourteen  dollars,  being  25  per  cen- 
Shields,  12  Phila.  (Pa.)  407;  turn  of  the  amount  found  due;  it 
Spcngler  v.  Hahn,  95  Wis.  472,  70  was  held  that  such  an  allowance 
N.  W.  466.  But  see  Wright  v.  Con-  was  authorized  by  the  terms  of  the 
servative  Investment  Co.  49  Or.  177,  mortgage.  Richards  v.  Hutchinson, 
89  Pac.  387.  18  Nev.  215.     See  also  Bonestell  v. 

^^Reed   v.    Cailin.    49    Wis.    686.       Bowie,  128  Cal.  511,  61  Pac.  78. 
Where  a  mortgage  contains  a  pro-  ^^  61  Ala.  497. 

vision,  that  in  case  of  foreclosure,  2055  wis.  312. 


§   1006] 


FEES,    COSTS    AND    DISBURSEMENTS. 


1393 


tion  to  the  taxable  costs  a  reasonable  and  customary  sum 
for  an  attorney's  or  solicitor's  fee."  the  amount  to  be  paid 
for  such  fee  must  be  ascertained  by  evidence,  as  the  judge  has 
no  authority  to  fix  the  amount  thereof  on  a  mere  inspection 
of  the  record,  or  from  his  personal  knowledge  of  the  services 
rendered. ^^ 

Where  a  mortgage  contains  a  stipulation  for  the  payment 
of  a  specified  sum  as  an  attorney's  fee,  in  case  the  mortgage 
is  foreclosed,  it  seems  that  the  allowance  of  a  greater  sum  w411 
be  erroneous. ^^  In  the  early  case  of  Remington  v.  Willard,^^ 
however,  where  the  mortgage  contained  a  stipulation  for  the 
payment  of  a  fee  of  seventy-five  dollars,  the  court  allowed, 
under  the  Wisconsin  Code,  five  per  centum  on  the  amount  due. 


21  As  to  the  necessity  for  proof  of 
the  value  of  an  attorney's  services, 
see  Wyaiit  v.  Pottorff,  37  Ind.  512; 
Samstag  v.  Conley,  64  Mo.  476; 
First  Nat.  Bank  of  Trenton  v.  Gay, 
63  Mo.  ZZ,  21  Am.  Rep.  430;  Woods 
V.  North,  84  Pa.  St.  407,  24  Am. 
Rep.  201 ;  Follansbee  v.  Northwest- 
ern Mutual  Life  Ins.  Co.  87  111. 
App.  609;  Waymire  v.  Shipley,  52 
Or.  464,  97  Pac.  807;  Stone  v.  Bil- 
lings, 167  111.  170,  47  N.  E.  372;  Mc- 
Clure  V.  Little,  15  Utah,  379,  49 
Pac.  298,  62  Am.  St.  Rep.  938; 
Ames  V.  Bigelow,  IS  Wash.  532,  46 
Pac.  1046;  Borcherdt  v.  Favor,  16 
Colo.  App.  406,  66  Pac.  251;  War- 
ren V.  Stoddart,  6  Idaho,  692,  59 
Pac.  540;  Unity  Co.  v.  Equitable 
Trust  Co.  204  111.  595,  68  N.  E.  654; 
Jones,  as  adm'r,  etc.  v.  Stoddart,  8 
Idaho,  210,  67  Pac.  650;  Rohrhof  v. 
Schmidt,  218  111.  585,  75  N.  E.  1062; 
Hough  V.  Wells,  as  trustee,  etc.  86 
111.  App.  186;  McCortnick,  as  trus- 
tee etc.  V.  Unify  Co.  142  111.  App. 
159;  Fidelity  &  Deposit  Co.  of 
Maryland  v.  Oliver,  57  Wash.  31, 
Mortg.  Vol.  II.— 88. 


106  Pac.  483 ;  Kurtz  v.  Ogden  Can- 
yon Sanitarium  Co.  27  Utah,  313, 
108  Pac.  14.  See  Nathan,  as  adm'r, 
etc.  V.  Brand,  67  111.  App.  540,  aff'd 

167  111.  607,  47  N.  E.  771 ;  Wattson 
V.  Jones,  101  111.  App.  572.  See 
also  Matheson  v.  Rogers,  84  S.  C. 
458,  65  S.  E.  1054;  Wright  v. 
Neely,  100  111.  App.  310;  Com- 
mercial National  Bank  v.  Johnson, 
16  Wash.  536,  48  Pac.  267;  Merrell 
V.  Ridgely,  57  So.  352  (Fla.)  But 
see  Hellier  v.  Russell,  136  Cal.  143, 
68  Pac.  581 ;  Sweeney  v.  Kaufman, 

168  111.  233,  48  N.  E.  144;  Carhart 
V.  Allen,  56  Fla.  763,  48  So.  47. 
Contra,  Hotaling  v.  Montieth,  128 
Cal.  556,  61  Pac.  95. 

22  Palmeter  v.  Carey,  63  Wis.  426 ; 
Uhrich  v.  Livergood,  95  111.  App. 
640;  Lewis  v.  Sutton,  122  Pac.  911 
(Idaho)  ;  Gunzenhauser  v.  Henke. 
97  III.  App.  485,  aff'd  in  195  111.  130, 
62  N.  E.  896.  See  Dennis  v.  Moses, 
18  Wash.  537,  40  L.R.A.  302,  52  Pac. 
333.  See  also  Newburg  v.  Coyne, 
85  111.  App.  74. 

23  15  Wis.  583. 


1394  MORTGAGE    FORECLOSURES.  [§     1007 

§  1007.  Allowance  of  attorney's  fee  a  matter  of  con- 
tract or  statute. — A  judgment  of  foreclosure  cannot  in- 
clude a  sum  as  an  attorney's  fee  in  addition  to  the  statutory- 
costs,  unless  such  sum  is  stipulated  for  in  the  mortgage,^*  or 
expressly  authorized  by  the  statute,  as  in  some  of  the  states. ^^ 
It  is  thought,  however,  that  courts  of  equity  may  allow  the 
counsel  fees  incurred  by  the  mortgagee  in  defending  his  title, 
without  an  express  contract  in  the  mortgage,  or  a  statutory 
enactment  providing  therefor.'^® 

A  stipulation  in  a  mortgage,  that  a  reasonable  attorney's  fee 
shall  be  taxed  by  the  court  and  included  in  the  bill  of  costs  in 
case  of  foreclosure,  is  legal,  and  may  be  enforced.^'  Such  pro- 
vision does  not  limit  the  court's  authority  to  allowing  an  attor- 
ney's fee  solely  as  a  part  of  the  bill  of  costs,  but  the  court  may 
make  a  special  allowance  therefor  in  its  decree. ^^  And  it  has 
been  said  a  provision  in  a  trust  deed,  that  in  case  of  breach 
the  trustee  may  file  a  bill  of  foreclosure  "in  his  own  name  or 
otherwise,"  and  from  the  proceeds  pay  solicitor's  fees,  au- 
thorizes such  payment,  although  foreclosure  is  brought  by 
the  holder  of  the  debt  secured. ^^  But  it  is  thought  that  when 
the  mortgage  authorizes  a  sale  on  default,  and  directs  the  pay- 

^^Sichel  V.  Carrillo,  42  Cal.  493;  333;  Bocks  v.  Hathorn,  17  Hun  (N. 

Stover  V.  Johnnycake,  9  Kan.  367,  Y.)  87.     See  Stover  v.  Johnnycake, 

Wylie    V.    Karner,    54    Wis.    591;  9   Kan.   367;  In   re  Carroll's   Will, 

Hitchcock  V.  Merrick,  IS  Wis.  522;  53  Wis.  228,  10  N.  W.  375;  Scholey 

Atwood  V.  Whittemore,  94  111  App.  v.  DcMattos,  18  Wash.  504,  52  Pac. 

294;  Johnson  v.   Clegg,  as   trustee,  242.     See  also  Spengler  v.  Hahn,  95 

etc.    121    111.    App.    550;    Sifaton    v.  Wis.  472,  70  N.  W.  466. 

IVcbb.  137  N.  C.  35,  49  S.  E.  55.  ^^  Lomax  v.  Hide,  2  Vern,   185; 

The  statutory  attorney's  fee  may  Hunt  v.   Fownes,  9  Ves.   70. 

be    allowed    on    foreclosure    of    a  27  Bynum   v.    Frederick,   81    Ala. 

mortgage,  where  the  bond  secured  489,   8    So.    198 ;    Grogan   v.    Nolan 

by  the  mortgage  provides  for  a  rea-  (Cal.)    36    Pac.    397;    L'Engle    v. 

sonabk   fee,   and   there   is   no   evi-  L'Engle,  21   Fla.    13. 

dence  as  to  what  is  a  reasonable  fee.  28  Grogan    v.    Nolan,    (Cal.)     36 

Cook    V.    Gilchrist,    82    Iowa,    736;  Pac.  397. 

subnom.  Cook  v.  Shorthill,  48  N.  W.  29  Cheltenham  Imp.  Co.  v.  White- 

84.  head,  l.?8  III.  279,  21  N.  E.  569. 

^^  Hunt   V.    Chapman,    62    N.    Y. 


§    1008]  FEES,    COSTS    AND    DISBURSEMENTS.  1395 

ment,  out  of  the  proceeds,  of  "all  costs  of  foreclosure,  includ- 
ing attorney's  fee,"  this  refers  only  to  a  foreclosure  by  sale 
under  the  power,  and  does  not  authorize  the  allowance  of  an 
attorney's  fee  for  filing  a  bill  to  foreclose.^" 

The  supreme  court  of  Oregon,  in  the  case  of  Balfour  v.. 
Davis, ^^  say  that  a  stipulation  in  a  mortgage  for  the  payment 
in  a  case  of  suit,  of  twenty  per  cent,  on  the  amount  due  ,as 
attorney's  fees,  whether  judgment  shall  be  recovered  or  not, 
is  in  violation  of  the  rule  of  just  compensation,  as  well  as  con- 
trary to  public  policy,  and  that  in  such  cases  the  court  will  not 
allow  even  a  reasonable  attorney's  fee. 

In  an  action  for  the  foreclosure  of  a  mortgage  executed 
by  a  corporation,  the  plaintiff  is  not  entitled  to  recover  a 
counsel  fee  for  such  foreclosure,  where  the  resolutions  of  the 
corporation,  authorizing  the  loan  and  the  execution  of  the 
mortgage,  did  not  provide  for  the  payment  of  a  counsel  fee, 
or  that  such  fee  should  be  secured  by  the  mortgage.'^ 

§  1008.  Enforcement  of  counsel  fee  against  purchaser. — 

A  covenant  in  a  mortgage,  that  in  case  of  foreclosure  the 
mortgagor  shall  pay  to  the  mortgagee  a  solicitor's  fee,  in 
addition  to  taxable  costs  in  the  suit,  is  enforceable  not  only 
against  the  mortgagor  but  also  against  a  subsequent  pur- 
chaser of  the  mortgaged  premises.^^  Where  the  note  which 
the  mortgage  is  given  to  secure  provides  for  an  attorney's  fee, 
such  fee  is  a  lien  upon  the  land.^* 

In  the  case  of  Pierce  v.  Kneeland,^^  the  court  say :  "It  is 
objected   that   the   covenant  could   not   be  enforced   against 

30  Bynum    v.    Frederick,    81    Ala.  ^4  County     Bank     of    San     Luis 
489,  8  So.  198.                                             Obispo  v.  Goldtree,  129  Cal.  160,  6i 

31  14  Oreg.  47,  12  Pac.  89.  Pac.  785 ;   Corson  v.  McDonald,  8S 
^^Schallard   v.   Eel  River  Steam       Pac.  861   (Cal.  App.) 

Nav.  Co.  70  Cal.  144.  35  ]6  Wis.  672,  84  Am.  Dec.  726. 

^^  Pierce   v.    Kneeland,     16    Wis.       See   Weatherby  v.  Smith,  30  Iowa, 
672,  84  Am.  Dec.  720.    But  see  First      131,  6  Am.  Rep.  663. 
Methodist  Episcopal  Church  v.  Fad- 
den,  8  N.  D.  162,  77  N.  W.  615. 


1396  MORTGAGE    FORECLOSURES.  [§     1009 

subsequent  purchasers.  But  we  fail  to  see  any  good  reason 
why  it  could  not.  In  case  of  foreclosure,  the  property  was 
bound  for  the  payment  of  the  one  hundred  dollars  solicitor's 
fee  as  much  as  it  was  for  the  taxable  costs.  The  defendants 
purchased  the  property  subject  to  the  incumbrances,  and  it  is 
certainly  strange  that  they  can  relieve  themselves  from  con- 
ditions in  the  mortgage  which  were  binding  upon  their  imme- 
diate grantors." 

The  supreme  court  of  the  United  States,  in  the  case  of 
Meddaugh  v.  Wilson,^®  say  that  where  one  of  the  purchasers 
of  property  at  a  foreclosure  sale,  which  is  subject  to  a  charge 
thereon  for  the  fees  of  the  attorneys  of  an  assignee  in  bank- 
ruptcy, has  agreed  to  pay  such  fees  out  of  a  certain  fund 
expected  to  be  realized  from  a  sale  of  the  property,  if  that 
fund  fails  to  be  realized  the  property  is  not  relieved  from  such 
charge,  although  the  decree  of  sale  was,  by  reason  of  such 
agreement,  entered  without  any  provision  for  the  payment  of 
such  fees. 

§  1009.  Allegation  as  to  counsel  fee. — The  fee  stipu- 
lated to  be  paid  in  a  foreclosure,  is  additional  to  the  costs 
recoverable  by  statute.^'  It  is  not  essential  that  there  should 
be  an  averment  that  the  amount  of  the  fee  stipulated  for  in 
the  mortgage  is  reasonable,^*  as  it  is  a  mere  incident  to  the 
cause  of  action  and  may  be  fixed  by  the  court  in  its  discre- 
tion.^' 

It  has  been  said,  that  where  a  mortgage  contains  a  stipu- 
lation that  the  mortgagee  shall  be  entitled  to  an  attorney's 
fee  in  any  action  that  he  may  be  compelled  to  bring  on  the 
mortgage,  he  may  claim  such  fee  when,  as  a  defendant  in 
the  foreclosure  of  a  prior  mortgage,  he  sets  up  his  cause  of 

36  151  U.  S.  333.  38  L.  ed.  183,  14       &  Loan  Ass'c.  131  Cal.  336,  63  Pac. 
Sup.  Ct.  Rep.  356.  670;  Damon  v.  Quiiin.  143  Cal.  75, 

37  Gronfier  v.  Minturn.  5  Cal.  492;       76  Pac.  C18. 

Carriere  v.  Minturn,  5  Cal.  435.  39  Carriere  v.  Minturn,  5  Cal.  435. 

38  McNamara  v.  Oakland  Building 


§     1010]  FEES^    COSTS    AND    DISBURSEMENTS.  1397 

action,  because  this  is.  in  effect,  bringing  an  action  on  the 
mortgage.*"  But  the  !^iipreme  court  of  Illinois  held,  in  the 
case  of  Soles  v.  Sheppard,*^  that  such  a  stipulation  does  not 
apply  to  the  filing  of  an  answer  or  a  cross  bill  by  a  mortgagee 
to  a  complaint  to  foreclose  a  mortgage. 

A  stipulation  in  a  mortgage  allowing  a  counsel  fee  in  a 
foreclosure  does  not  entitle  the  plaintiff  to  such  counsel  fee 
until  he  has  paid  it  or  become  liable  therefor.*^  The  mort- 
gagee cannot  recover  such  fee  for  personally  prosecuting  liis 
own  foreclosure;*^  consequently,  an  attorney  who  is  the  mort- 
gagee, cannot  recover  such  a  fee  in  his  own  foreclosure.** 

§  1010.  When  attorney's  fee  not  allowed. — A  counsel 
fee  for  foreclosing  a  mortgage  will  be  allowed  in  no  case, 
unless  stipulated  in  the  mortgage,*^  or  expressly  authorized 
by  statute,*®  and  even  where  it  is  so  stipulated  or  authorized, 
such  fee  will  not  be  allowed  in  the  decree  unless  it  is  demanded 
in  the  bill  or  complaint.*''' 

A  provision  in  a  mortgage  for  an  attorney's  fee  is  not  en- 

*^  Lanoue  v.  McKinnon,  19  Kan.  ^^  Sichel  v.  Carrillo.  42  Cal.  493; 

408.  IVylie  v.  Karner,  54  Wis.  591 ;  John 

"99  111.  616.  Brickell  Co.  v.  Sutro,  11  Cal.  App. 

^'^Bank  of  Woodland  v.  Tread-  460,  105  Pac.  948;  Goode  v.  Colo- 
land,  55  Cal.  379;  Patterson  v.  Don-  rado  Investment  Loan  Co.  16  X.  AI. 
ner,  48  Cal.  369;  Soles  v.  Sheppard,  461,  117  Pac.  856;  Shaw  v.  Smith, 
99  111.  616;  Reed  v.  Catlin,  49  Wis.  as  assignee,  etc.  107  Md.  523,  69 
686.  Atl.  116. 

^^  Patterson    v.    Donner,   48    Cal.  ^^  Bockes  v.  Hathorn,\7  Unn  (N. 

369;  Reed  V.  Catlin.  A9yN\s.  em.  Y.)    87;    Stover   v.    Johnuycake,   9 

^  Patterson    v.    Donner,   48    Cal.  Kan.  367. 

369;  Sclater  v.  Cottani,  3  Jur.  N.  S.  ^''Augustine  v.  Doud,  1  111.  App. 

630;    Gantzer  v.   Schmelts,   206   111.  588;    Crowe    v.    Kennedy,    127    111. 

560.  69  N.  E.  584;  Gray  v.  Robert-  App.  189;  Knight  v.  Heafer,  79  111. 

son,  174  111.  242,  51  N.  E.  248.     See  App.  374. 

also  Stein  v.  Kami,  as  ex'x  etc.  244  In  California  no  allegation  is  nec- 

111.  32,  91  N.  E.  77 ;   Touhy  v.  Mc-  essary.     Orange   Growers'   Bank   v. 

Cagg,  as  ex'r  etc.  121  111.  App.  93,  Duncan.  133  Cal.  254,  65  Pac.  469; 

134  111.  App.  56;  Gale  v.  Carter,  154  Thrasher  v.  Moran,  146  Cal.  683,  81 

111.  App.  478.  Pac.  32. 


1398  MORTGAGE    FORECLOSURES.  [§    1011 

forceable  unless  a  sale  is  actually  made.*^  Thus,  it  was  held  in 
Jennings  v.  McKay ,*^  that  a  stipulation  in  a  mortgage  pro- 
viding that  "an  attorney's  fee  of  fifty  dollars  for  foreclosure, 
with  costs  of  suit  and  accruing  costs,"  shall  be  taxed  against  the 
mortgagor,  does  not  authorize  such  a  fee  unless  a  decree 
for  foreclosure  is  entered;  if  the  mortgagor  pays  the  debt 
after  the  action  is  commenced,  but  before  a  decree  of  sale  is 
entered,  the  fee  cannot  be  collected.  It  has  been  held,  that 
under  a  provision  in  a  power  of  sale  for  an  attorney's  fee  in 
case  of  foreclosure,  no  allowance  can  be  made  if  the  mortgage 
is  foreclosed  in  chancery  instead.^" 

The  supreme  court  of  Maryland  held,  in  the  case  of  Maus 
V.  McKellip,®^  that  fees  paid  to  counsel  for  resisting  an  ap- 
plication by  the  assignee  in  bankruptcy  of  the  mortgagor  to 
enjoin  a  sale  under  a  pov.er  contained  in  the  mortgage,  do 
not  constitute  a  payment  in  defense  of  the  mortgage  title. 
A  defendant  in  a  foreclosure  who  does  not  seek  to  redeem, 
"but  who  claims  the  land  by  a  superior  title,  is  not  in  a  posi- 
ition  to  object  to  the  amount  of  an  attorney's  fee  allowed  by 
the  court.^'^ 

1 

§  1011. — Costs  on  redeeming. — It  is  said  in  the  case  of 

Benedict  v.  Oilman, ^^  that  upon  the  redemption  of  mortgaged 

premises  by  a  judgment  creditor,  after  a  statutory  foreclosure, 

he  is  not  bound  to  pay  the  costs  of  such   foreclosure;  but 

the  general  rule  is  that  a  party  who  is  permitted  to  redeem 

mortgaged  premises,  whether  he  is  a  plaintiff  or  a  defendant 

*^  Myer  v.  Hart,  40  Mich.  517,  25  313.     See  also  First  National  Bank 

Am.   Rep.   553.  v.    Tamble,  62  S.  W.  308    (Tenn.) 

*8  19  Kan.  120,  distinguishing  Life  But  see  British  &  American  Mort- 

Association   v.   Dale,    17   Kan.    185.  gage  Co.  Ltd.  v.   Worrill,  168  Fed. 

See    Schmidt    v.    Potter,    35    Iowa,  120  (Ga.) 

426;    Collar  v.   Harrison,  30   Mich.  5138  Md.  231. 

66.  52  Winnebago   County  v.  Brones, 

50  VanMarter    v.     McMillan,    39  68  Iowa,  682. 

Mich.  304;  Hardivick  v.  Bassctt.  29  534  Paige  Ch.  (N.  Y.)  58 
Mich.  17;  Sage  v.  Riggs,  12  Mich 


§    1012]  FEES,    COSTS    AND   DISBURSEMENTS.  1399 

in  the  suit,  must  pay  the  costs  of  the  suit  in  addition  to  the 
amount  due  on  the  mortgage. 

Where  the  purchaser  under  a  statutory  foreclosure  makes 
valuable  and  permanent  improvements  upon  the  premises, 
under  the  belief  that  he  has  a  good  title,  and  without  notice 
of  the  existence  of  a  judgment  which  is  a  lien  upon  the  equity 
of  redemption,  the  judgment  creditor  applying  to  redeem, 
must,  in  addition  to  the  amount  due  upon  the  mortgage,  pay 
the  enhanced  value  of  the  premises  arising  from  such  im- 
provements.^* 

§  1012.  Foreclosure  under  power — Mortgagee's  com- 
pensation.— Under  a  power  of  sale  contained  in  a  mort- 
gage, reasonable  and  proper  expenses  incurred  in  advertising 
a  sale  under  such  power  will  always  be  allowed,  whether  or 
not  an  express  provision  therefor  is  made  in  the  mortgage ;  *^ 
and  this,  it  is  thought,  will  always  include  a  reasonable  sum  for 
legal  advice  regarding  the  sale  and  an  attorney's  fee  for  pre- 
paring the  notice  of  sale.^^ 

Where,  however,  the  sale  is  not  compelted,  and  the  adver- 
tisement, being  imperfect,  is  withdrawn  after  a  single  publica- 
tion, no  costs  or  attorney's  fees  can  be  collected.^'  Where 
a  sale  is  enjoined,  after  it  is  advertised,  and  the  mortgagee 
or  trustee,  in  anticipation  of  the  action  of  the  court,  incurs 
expenses  in  advertising  an  adjournment  of  the  sale,  he  will 
not  be  entitled  to  have  such  expenses  allowed,  on  the  disso- 
lution of  the  injunction.^* 

^*  Benedict  v.  Gihnan,  4  Paige  Ch.  Allen)   158.     See  Swift  v.  Board  of 

(N.  Y.)  58.     See  Bradley  v.  Snyder,  County    Com'rs.    of   Hennepin    Co. 

14  111.  265,  58  Am.  Dec.  564.  76  Minn.  194,  78  N.  W.  1107. 

^^  Collins  V.  Standish,  6  How.  (N.  ^7  See     Collar    v.     Harrison,     30 

Y.)  Pr.  493;  Allen  v.  Robbins,  7  R.  Mich.  66;  VVhitaker  v.  Old  Domin- 

I.  33:  F earns  v.  Young,  10  Ves.  184;  ion  Guano  Co.  123  N.  C.  368,  31  S. 

Worrall  v.  Harford,  8  Ves.  4.  E.  629. 

^^  Marsh  v.  Morton,  75   111.  621:  ^^  Marsh   v.   Morton,   75    111.   621. 

Varnuni    v.   Meserve,  90   Mass.    (8  See  Collins  v.  Standish,  6  How.  N. 


1400  MORTGAGE    FORECLOSURES.  [§     1013 

§  1013.  Expenses  and  disbursements  of  trustee. — The 

holder  of  a  mortgage,  containing  a  power  of  sale,  on  fore- 
closing under  such  power,  is  regarded  as  a  trustee,  and  under 
the  general  rule  applicable  to  trustees,  that  they  shall  not  be 
permitted  to  profit  by  their  trust,  he  will  not  be  entitled  to 
recover  compensation  for  his  ser\ices,  in  the  absence  of  a 
special  agreement  providing  therefor.*' 

Provision  may  be  made  in  the  mortgage  or  trust  deed  for 
compensation  to  the  mortgagee  or  trustee,  and  in  such  a  case 
the  agreement  of  the  parties  will  govern.  Where  a  provision  is 
inserted,  securing  the  mortgagee  or  trustee  a  commission 
for  his  services  in  selling  the  property,  such  compensation  will 
be  allowed,  in  addition  to  his  ordinary  expenses  and  counsel 
fees.^"  The  mere  fact,  however,  that  a  party  is  named  as  trus- 
tee in  a  deed  of  trust  raises  no  implied  promise  on  the  Dart 
of  the  beneficiary  to  pay  him  for  his  services." 

§  1014.  Taxing  costs  and  disbursements  on  foreclosure 
by  advertisement. — The  New  York  Code  of  Civil  Preced- 
ure  provides,®^  that  costs,  in  addition  to  necessary  expenses 
provided  for,  shall  be  allowed  as  follows,  in  a  statutory  fore- 
closure: "(1)  For  drawing  a  notice  of  sale,  a  notice  of  the 
postponement  of  a  sale,  or  an  affidavit,  made  as  prescribed  in 
this  title,  for  each  folio,  twenty-five  cents ;  for  making  each 
necessary  copy  thereof,  for  each  folio,  thirteen  cents.  (2) 
For  serving  each  copy  of  the  notice  of  sale,  required  or  ex- 

Y.)    Pr.    493.      See    also    Feigner's  Miss.  744,  35  So.  200;  Fry  v.  Gra- 

Administrators  v.  Slingluff,  109  Md.  ham,   122  N.  C.  773,  30  S.  E.  330. 

474,  71  Atl.  978.  But    see   Harris   v.    First   National 

^9  Allen   V.   Robbins,   7   R.    I.   33.  Bank,  45  S.  W.  311   (Tex.) 

See  Lime  Rock  Bank  v.  Phetteplace,  ^^  Lime    Rock    Bank    v.    Phette- 

8  R.  I.  56;  Catlin  v.  Glover,  4  Tex.  place,  8  R.  I.  56.     See   Varnum  v. 

151;   Sugden  on  Vendors,  55;  also  Meserve,  90  Mass.    (8  Allen)    158; 

Parshalts  Appeal,  65   Pa.   St,  233;  Loftis  v.  Duckworth,  146  N.  C.  343. 

Sloo  V.  Law,  3  Blatchf.  C.  C.  459;  59  S.  E.  689. 

Duffy  V.  Smith,  132  N.  C.  38,  43  S.  "  Catlin  v.  Glover,  4  Tex.  151. 

E.  501.     See  also  Elkin  v.  Rives,  82  «2  N.  Y.  Code  Civ.  Proc.  §  2401. 


§     1015]  FEES,    COSTS    AND    DISBURSEMENTS.    "  1401 

presslv  permitted  to  be  served  by  this  title,  and  for  affixing- 
each  copy  thereof,  required  to  be  affixed  upon  the  court  house, 
as  prescribed  by  this  title,  one  dollar.  (3)  For  superintend- 
ing the  sale,  and  attending  to  the  execution  of  the  necessary 
papers,  ten  dollars."  ^^ 

A  charge  for  drawing  the  notice,  for  making  an  office  copy 
to  keep,  and  for  a  copy  for  the  printer,  is  proper ;  ^*  and  it  is 
proper  to  charge  for  thirteen  weeks'  publication.®^  But  a 
charge  cannot  be  made  for  a  copy  of  the  notice  served  on 
the  auctioneer,  when  he  is  also  the  counsel  of  the  mort- 
gagee.^® 

Where  the  mortgagee  neglected  to  serve  the  notice  of  sale 
on  the  necessary  parties,  and  the  sale  had  to  be  postponed 
for  that  reason,  the  court  held  that  such  mortgagee  could 
not  tax  the  costs  of  the  sale  first  attempted.®"'^  In  taxing  costs 
in  such  a  foreclosure,  matter  inserted  in  the  notice  which  is 
not  required  by  statute,  should  be  excluded  in  determining 
the  number  of  folios  to  be  allowed ;  and  no  charge  should 
be  allow^ed  for  serving  the  notice  on  parties  not  required  by 
statute  to  be  served.®* 

§  1015.  What  disbursements  allowed. — On  foreclosure 
of  a  mortgage  an  allowance  will  be  m.ade  the  plaintiff  for 
expenses  and  services  in  the  prosecution  of  the  suit,  where 
they  are  provided  for  in  the  mortgage;®^  this  will  include 
the  amount  paid  for  advertising  and  posters  for  the  sale  of 
the  mortgaged  property.'"     And  a  second  mortgagee  has  a 

^^  Collins  y.  Standish,  6  How.  (N.  Wooley,  9   N.  Y.   Civ.    Proc.    Rep. 

Y.)   Pr.  493,  495.  236! 

^Ferguson  v.    Wooley,  9   N.  Y.  ^^  Ferguson  v.    Wooley,  9  N.   Y. 

Civ.  Proc.  Rep.  236.  Civ.  Proc.  Rep.  236. 

65  Ferguson  v.  Wooley,  9  N.  Y.  69  Mercantile  Trust  Co.  v,  Mis- 
Civ.  Proc.  Rep.  236.  souri,  K.  &■  T.  R.  Co.  41  Fed.  8,  7 

^^  Ferguson   v.    I'l'ooley,  9   N.   Y.  Ry.  &  Corp.  L.  J.  30. 

Civ.  Proc.  Rep.  236.  '^'^  Snow  v.  Warwick  Sav.  Inst.  17 

^T  Hornby    v.    Cramer,    12    How.  R.  I.  66,  20  Atl.  94. 

(N.     Y.)     Pr.     490;     Ferguson     v.  If  an  auctioneer  employed  to  sell 


1402  MORTGAGE    FORECLOSURES.  [§     1015 

right,  on  foreclosure  of  his  mortgage,  to  collect  the  interest 
paid  by  him  upon  the  first  mortgage,  but  is  not  entitled  to  an 
assignment  of  any  share  of  such  mortgage.'''^  But  where  a 
second  mortgagee  foreclosed  and  purchased  at  the  sale,  with- 
out making  the  first  mortgagee  a  party,  and  subsequently  the 
latter  pays  an  assessment  for  street  improvements  binding 
on  the  property,  but  not  on  the  purchaser  personally,  the  one 
so  paying  cannot  recover  the  amount  paid  from  the  purchasing 
mortgagee^^  And  it  is  said  by  the  supreme  court  of  New 
York,  in  the  case  of  Parker  v.  Collins,'^  that  a  mortgagee 
who  has  advanced,  upon  the  faith  of  his  mortgage,  moneys  to 
procure  the  assignment  to  himself  of  a  claim  against  the 
mortgagor,  and  not  to  pay  the  debt,  stands  in  the  same  posi- 
tion as  his  assignor  in  respect  to  the  right  of  the  mortgagor 
to  question  the  amount  of  the  claim. 

The  New  York  Code  provides,'''*  that  there  shall  be  an  al- 
lowance for  disbursements,  not  exceeding  the  fees  allowed  by 
law  for  those  services,  as  follows:  "(1)  For  publishing  the 
notice  of  sale,  and  the  notice  or  notices  of  postponement,  if 
any,  for  a  period  not  exceeding  twenty-four  weeks.  (2)  For 
the  services  specified  in  section  2390  of  this  act.  (3)  For  re- 
cording the  affidavits;  and  also,  where  the  property  sold  is 
situated  in  two  or  more  counties,  for  making  and  recording  the 
necessary  certified  copies  thereof.  (4)  For  necessary  postage 
and  searches."  '* 

mortgaged  property   is   absent   and  'i  Magilton   v.   Holbert,   52   Hun 

sends    another    auctioneer    in    his  (N.  Y.)   444,  24  N.  Y.  S.  R.  96,  5 

place  under  a  special  contract,  the  N.  Y.  Supp.  507. 

mortgagee,    as     expenses    incurred  '2  Mutual  L.  Ins.  Co.  v.  Sage,  41 

for  the  sale  of  the  property,  is  en-  Hun  (N.  Y.)  535. 

titled   only  to  the   amount   paid  to  '3  127  N.  Y.  185,  27  N.  E.  825,  38 

the  auctioneer  who  sold  it,  and  not  N.  Y.  S.  R.  269. 

to   the   amount   which  would   have  '*  N.  Y.  Code  Civ.  Proc.  §  2402. 

been   due   to   the   other    if    he   had  ''^  Collins  v.  Standish,  6  How.  (N. 

performed  his  agreement.    Snow  v.  Y.)   Pr.  493. 

Warwick  Sav.  Inst.  17  R.  I.  66,  20 

Atl.  94. 


§     1016]  FEES^    COSTS    AND    DISBURSEMENTS.  1403 

§  1016.  Who  may  require  taxation  of  costs  and  dis- 
bursements.— Any  party,  who  is  liable  for  the  costs  of  the 
foreclosure,  may  require  such  costs  to  be  taxed.  Thus,  it  has 
been  held,  that  a  party  who  claims  the  surplus,  as  an  heir 
at  law  of  the  mortgagor,  and  who  has  been  recognized  as  a 
claimant,  by  being  made  defendant  in  an  action  of  inter- 
pleader to  determine  the  ownership  of  the  surplus,  is  a  party 
liable  to  pay  the  costs,  and,  as  such,  entitled  to  require  their 
taxation.'^ 

The  New  York  Code  provides,''  that  "costs  and  expenses 
must  be  taxed,  upon  notice,  by  the  clerk  of  the  county  where 
the  sale  took  place,  upon  the  request  and  at  the  expense  of  any 
person  interested  in  the  payment  thereof.  Each  provision  of 
this  act  relating  to  the  taxation  of  costs  in  the  supreme  court, 
and  the  review  thereof,  applies  to  such  a  taxation."  '* 

It  is  said  in  Ferguson  v.  Wooley,'^  that  devisees,  under 
the  recorded  will  of  a  deceased  mortgagor,  and  a  lessee,  under 
a  recorded  lease,  may  be  deemed  grantees  who  should  be 
served  with  the  notice  of  sale;  wliere  such  devisees  are  minors 
under  fourteen  years  of  age,  a  notice  should  also  be  served 
on  their  guardian,  and  such  service  may  be  charged  for, 

§  1017.  Costs  in  surplus  proceedings. — In  proceedings 
for  the  distribution  or  surplus  moneys,  motion  fees,  fees  of 
the  referee,  and  disbursements,  are  all  the  costs  that  can  be 
granted  to  the  successful   party.^°    The  hearing  before  the 

76 /m  re  Moss,  6  How.   (N.  Y.)  (N.  Y.)    Pr.  458;  In  re  Gibbs,  58 

Pr.  263.  How.    (N.  Y.)    Pr.  502;  Elwell  v. 

77  N.  Y.  Code  Civ.  Proc.  §  2403.  Robbins,  43  How.  (N.  Y.)  Pr.  108; 

78  The  statute  clearly  contem-  German  Sav.  Bank  v.  Sharer,  25 
plates  a  taxation  in  such  manner  Hun  (N.  Y.)  409;  McDermott  v. 
that  the  parties  can  be  heard,  and  Hennesy,  9  Hun  (N.  Y.)  59;  He- 
not  an  ex  parte  taxation.  In  re  brank  v.  Colell,  2  N.  Y.  Month.  L. 
Moj.y,  6How.  (N.  Y.)  Pr.  263.  Bui.  39;  Dudgeon  v.  Smith,  23  N. 

799  N.  Y.  Civ.  Proc.  236.  Y.  Week.   Dig.  400;    Wellington  v. 

^^  Borland  V.  Alleond,%X)2i\y  {^.  Ulster  County  Ice  Co.  5  N.  Y. 
Y.)  126;  New  York  Life  Ins.  &  Week.  Dig.  104.  In  Elwell  v.  Rob- 
Trust    Co.    V.    Vanderbilt,    12   Abb.  bins,  43  How.    (N.  Y.)    Pr.   108,  it 


1404  MORTGAGE    FORECLOSURES,  [§    1017 

referee  is  not  a  trial,  and  no  extra  allowance  can  1)e  m:\fle 
therefor. ^^  The  reason  for  this,  is  thought  to  be,  that  proceed- 
ings for  the  distribution  of  surplus  moneys  arising  in  a  fore- 
closure by  action,  are  not  special  proceedings,  but  are  pro- 
ceedings in  the  action  and  a  part  of  it.'* 

In  Elwell  V.  Robbins,'^  Balcom,  J.,  said  :  "It  was  held  in 
Xew  York  Life  Insurance  &  Trust  Company  v.  Vanderbilt.'* 
that  in  disposing  of  surplus  funds  arising  on  the  foreclosure 
of  a  mortgage,  the  court  has  authority  to  allow  to  the  parties 
a  suitable  compensation  for  costs  and  disbursements,  to  be 
paid  out  of  the  funds,  in  addition  to  the  taxable  costs.  This 
is  a  special  proceeding.  It  is  provided  by  statute  that  in  special 
proceedings,  costs  may  be  allowed  in  the  discretion  of  the 
court,  and  when  allowed,  shall  be  at  the  rate  allowed  for  simi- 
lar services  in  civil  actions.®*  The  claimants  to  the  surplus 
moneys  are  entitled  to  the  fees  of  the  referee  and  the  fees  of 
the  clerk  in  the  proceeding.  The  only  costs,  aside  from  dis- 
bursements, that  can  be  allowed  the  claimants,  at  the  rate 
allowed  for  similar  services  in  civil  actions,  are  such  as  are 
prescribed  by  the  Code.  The  attorney  of  the  claimants  has 
made  two  motions  in  this  proceeding,  one  for  the  appointment 
of  the  referee,  and  the  other  for  the  confirmation  of  his  re- 
port. And  by  section  315  of  the  Code,  not  exceeding  $10  for 
each  motion  can  be  allowed  the  claimants,  or  their  attorney,  in 
the  discretion  of  the  court.  I  will  not  say  but  there  may 
be  made  cases  where  the  proceedings  before  the  referee  should 

was    held    that    two    motion    fees  9    Hun    (N.   Y.)    59;   Dudgeon   v. 

might  be  allowed  in  such  proceed-  Smith,  23   N.   Y.  Week.   Dig.  400; 

ings,  one  on  the  appointment  of  a  IVcllington  v.  Ulster  County  Ice  Co. 

referee  and  the  other  on  the  con-  5  N.  Y.  Week.  Dig.  104. 

tirmation  of  his  report.  ^^  Mutual  Life  Ins.  Co.  v.  Bowen, 

"  See  Borland  v.  Alleond,  8  Daly  47  Barb.   (N.  Y.)  618;  In  re  Gihbs, 

(N.  Y.)   126;  In  re  Gibbs.  58  How.  58  How.    (N.  Y.)    Pr.  502,  504. 

(N.  Y.)  Pr.  502;  Elwell  v.  Rabbins.  8343  How.  (N.  Y.)   Pr.  108. 

43  How.   (N.  Y.)   Pr.  108;  German  8*12  Abb.  (N.  Y..)  Pr.  458. 

Sav.  Bank  v.  Sharer,  25  Hun    (N.  85  Laws  of  1854,  chap.  270,  §  3. 
Y.)    409;    McDermott   v.    Hennesy, 


§     1019]  FEES,    COSTS    AND    DISBURSEMENTS.  1405 

be  regarded  in  the  nature  of  a  trial,  and  a  trial  fee  allowed 
to  the  claimant  of  the  surplus  moneys  in  the  discretion  of  the 
court." 

§  1018.  Who  entitled  to  costs  in  surplus  proceedings. — 

The  successful  applicant  for  surplus  moneys  is  entitled  to 
have  his  costs  taxed  to  the  extent  set  forth  in  the  preceding- 
section;  and  where  on  a  complaint  to  foreclose  a  mortgage. 
the  widow  of  the  mortgagor  is  made  a  party  and  answers 
and  submits  to  the  decrees  of  the  court,  she  is  entitled  to 
one-third  of  the  surplus  proceeds  of  the  sale  of  the  mortgaged 
premises  remaining  in  court,  after  satisfying  the  mortgage 
debt,  as  her  equitable  dower,  and  to  have  her  costs  paid  out 
of  the  other  two-thirds.^® 

§  1019.  Who  chargeable  with  costs  in  surplus  proceed- 
ings.— Generally  the  costs  and  expenses  of  the  proceedings 
for  the  distribution  of  surplus  moneys  are  properly  chargeable 
against  the  proceeds  of  the  mortgage  sale ;  ^'  but  where  the 
facts  are  such  as  to  make  another  rule  more  equitable,  they 
may  be  charged  against  a  party  individually.^' 

Where  the  surplus  is  small,  and  unsuccessful  claimants 
have  caused  unnecessary  expenses,  they  may  be  charged  per- 
sonally with  the  costs ;  ®^  parties  litigating  in  good  faith,  how- 

86  Tabele  v.  Tabele,  1  Johns.  Ch.  the  surplus  moneys  upon  a  sale  of 

(N.  Y.)  45.     See  Hawley  v.  Brad-  mortgaged    premises,    who    should 

jord,  9  Paige  Ch.  200,  2)7  Am.  Dec.  fail  to  establish  his  claim    on    the 

390.  reference  before  the  master,  might 

8'^  Oppcnheimer  v.  Walker,  3  Hun  be  charged  with  such  costs,  as  the 

(N.  Y.)  31,  5  T.  &  C.  (N.  Y.)  325.  other  parties  were  subjected  to  by 

^^  Lawton  v.  Sager,  11  Barb.   (N.  reason    of    such    claim.      And    the 

Y.)  349;  Bevierv.  Schoonmaker, 29  parties  succeeding  in  the  reference 

How.  (N.  Y.)  Pr.  411.  might  be  allowed  such  costs  as  the 

^^  Law  ton  v.  Sager,  11  Barb.  (N.  court  should  deem  reasonable;  but 

Y.)  349;  Bevier  v.  Schoonmaker,  29  no  costs,  unnecessarily  incurred  on 

How.   (N.  Y.)    Pr.  411.  such  reference,  or  previous  thereto. 

Chancery  rule  136  also  provided,  by  any  of  the  parties,  could  be  al- 

in  respect  to  costs  on  the  reference,  lowed  on   taxation  or  paid  out  of 

that  any  person  making  a  claim  to  such  surplus. 


1406  MORTGAGE    FORECLOSURES.  [§    1020 

ever,  will  not  usually  be  so  charged.®"  Thus,  it  has  been  held 
that  a  claimant  who  litigates  a  prior  lien  unsuccessfully  and 
in  good  faith,  is  not  chargeable  with  costs;  but  if  he  files  ex- 
ceptions which  are  overruled,  he  will  be  required  to  pay  the 
costs  of  the  appeal.®^  And  if  a  creditor  makes  claim  to  a 
larger  amount  than  is  found  upon  the  reference  to  be  owing 
to  him,  or  if  he  adopts  an  unusual  and  expensive  method  of 
procedure,  he  may  be  charged  with  the  costs. 

When  a  junior  incumbrancer,  who  has  sufficient  reason  to 
believe  that  the  prior  lien  will  exhaust  the  surplus,  files  his 
claim  and  subjects  the  prior  incumbrancer  to  unnecessary 
costs,  he  will  be  required  to  pay  such  costs.  The  rule  is  dif- 
ferent, however,  where  he  acts  in  good  faith  and  has  sufficient 
reason  to  believe  that  the  prior  lien  will  not  exhaust  the  sur- 
plus.®^ It  has  been  held  that  a  creditor  who  was  not  made  a 
party  to  the  suit,  and  who  files  a  claim  to  the  surplus,  will  be 
required  to  pay  the  costs  of  proving  his  claim.®' 

§  1020.  Disbursements  in  surplus  proceedings. — Al- 
though disbursements,  in  an  action  to  foreclose  a  mortgage, 
are  not  costs  in  the  strict  sense  of  the  word,  yet  they  may  be 
regarded  as  discretionary,  and  the  courts  usually  allow  dis- 
bursements not  legally  chargeable  as  costs,  if  they  are  for 
services  actually  rendered  and  are  reasonable  in  amount.®"* 

Disbursements  usually  include  advancements  necessary  to 
remove  prior  incumbrances  and  to  protect  the  rights  and  in- 
terests of  the  mortgagee ;  ®^  also  taxes,  assessments  and  insur- 

^^  Farmers'  Loan  &  Trust  Co.  v.  Y.)  349;  Bevier  v.  Schoonmaker,  29 

Millard,  9  Paige  Ch.  (N.  Y.)  620;  How.    (N.  Y.)   Pr.  411,  422. 

Norton    v.    Whiting,    1    Paige    Ch.  ^^  Benedict  v.  Warriner,  14  How. 

(N.  Y.)  578.  (N.  Y.)  Pr.  568;  Gallagher  v.  Egan, 

91 D^    LaVergne    v.    Evertson,    1  2  Sandf.  (N.  Y.)  742. 

Paige  Ch.  (N.  Y.)  181,  19  Am.  Dec.  ^^ Hill  v.  Eldred,  49  Cal.  398.    See 

411.  Marshall  v.  Davics,  78  N.  Y.  414; 

^^  Fanners'  Loan  &  Trust  Co.  v.  Williams   v.    Townsend,   31    N.    Y. 

Millard.  9  Paige  Ch.   (N.  Y.)   620.  411;   Robinson  v.   Ryan,  25   N.   Y. 

^^Abcll  V.   Screech,   10  Ves.  355.  320;  Eagle  Fire  Ins.  Co.  v.  Pell,  2 

See  Lawton  v.  Soger,  11  Barb.  (N.  Edw.  Ch.  (N.  Y.)  631;  Brevoort  v. 


1020] 


FEES,    COSTS    AND    DISBURSEMENTS. 


1407 


ance  paid  by  the  mortgagee. ^^  This  rule  is  applicable  although 
the  mortgage  may  not  contain  a  tax  clause ;  ^"^  and  a  mort- 
gagee has  a  right  to  pay  insurance  premiums  for  the  protec- 
tion of  the  estate  mortgaged,  and  to  add  the  amount  paid  to 
the  mortgage  debt,  independently  of  an  express  agreement 
authorizing  such  payment. ^^ 

The  supreme  court  of  California,  in  the  case  of  Glide  v. 
Dwyer,^^  hold  that  a  trustee  named  in  a  mortgage,  who,  with 
his  own  funds,  purchased  a  first  mortgage  on  a  portion  of  the 
premises  covered  by  the  trust  mortgage,  is  entitled,  on  fore- 
closure of  such  mortgage,  to  the  amount  so  expended  by  him, 
out  of  the  proceeds  of  the  entire  premises.  It  is  the  universal 
rule  that  a  mortgagee  who  pays  taxes  on  the  mortgaged  prop- 
erty because  of  default  of  the  mortgagor  in  making  the  pay- 
ments should  be  allowed  the  amount  in  his  foreclosure  suit.-^ 
And  where  the  mortgage  provides  for  the  payment  out  of  the 


Raiidolf,  7  How.  (N.  Y.)  Pr.  398; 
Burr  V.  Feeder,  3  Wend.  (N.  Y.) 
412;  Hughes  v.  Johnson,  38  Ark. 
296. 

98  Sidcnberg  v.  Ely,  90  N.  Y.  257, 
43  Am.  Rep.  163;  Williams  v. 
Townscnd,  31  N.  Y.  411;  Kortright 
V.  Cady,  5  Abb.  (N.  Y.)  Pr.  358,  23 
Barb.  (N.  Y.)  490;  Mix  v.  Hotch- 
kiss,  14  Conn.  32;  Wright  v.  Lang- 
ley,  36  111.  381. 

9'  Sidenberg  v.  Ely,  90  N.  Y.  257, 
43  Am.  Rep.  163.  In  re  Bogart,  28 
Hun  (N.  Y.)  466;  Cook  v.  Kraft,  3 
Lans.  (N.  Y.)  512.  Compare  Faure 
V.  Wynans,  Hop.  Ch.  (N.  Y.)  283, 
14  Am.  Dec.  545 ;  Barthell  v.  Syver- 
son,  54  Iowa,  160;  Savage  v.  Scott, 
45  Iowa,  130;  Manning  v.  Tuthill, 
30  N.  J.  Eq.   (3  Stew.)  29. 

»*/n  re  Bogart,  28  Hun  (N.  Y.) 
466,  469. 

99  83  Cal.  477,  23  Pac.  706. 
^Jackson  V.  Relf,  26  Fla.  465,  8 


So.  184.  See  German  Sav.  &  L. 
Soc.  V.  Hutchinson,  68  Cal.  52,  8 
Pac.  627;  Windett  v.  Union  Mut.  L. 
Ins.  Co.  144  U.  S.  581,  36  L.  ed.  551, 
12  Sup.  Ct.  Rep.  751;  Gormley  v. 
Bunyan,  138  U.  S.  623,  34  L.  ed. 
1086,  11  Sup.  Ct.  Rep  453. 

Upon  a  sale  under  a  trust  deed 
containing  a  covenant  to  pay  all 
taxes  and  assessments  on  the  prop- 
erty, the  amount  necessary  to  pay 
off  the  taxes,  if  not  advanced  be- ' 
fore  the  sale,  can  be  properly  taken 
out  of  the  proceeds.  Gormley  v. 
Bunyan,  138  U.  S.  623,  34  L.  ed. 
1086,  11  Sup.  Ct.  Rep.  453. 

School  taxes  cannot  participate 
in  the  distribution  of  the  proceeds 
of  a  mortgage  sale  under  Pennsyl- 
vania Local  Act  April  11,  1866, 
making  such  taxes  a  lien  on  realty, 
but  not  providing  for  their  payment 
out  of  the  proceeds  of  sale.  Bar- 
clay V.  Leas,  9  Pa.  Co.  Ct.  314. 


1408  MORTGAGE    FORECLOSURES.  [§     1021 

proceeds  of  the  sale  of  the  mortgaged  property  all  moneys 
advanced  for  taxes,  the  mortgagee  is  entitled  to  be  repaid  the 
sums  expended  by  him  to  extinguish  tax  titles,  and  is  not  ob- 
liged to  contest  them,  where  it  was  obhgatory  on  the  mortgagor 
to  pay  the  taxes. ^  On  the  same  principle  all  payments  of  taxes 
and  street  assessments,  made  under  authority  given  in  the 
mortgage,  after  presentation  of  the  claim  against  the  estate 
of  a  deceased  mortgagor,  are  properly  allowable  on  foreclos- 
ure made  without  presentation.^ 

Whether  or  not  taxes  for  the  current  year  upon  property 
purchased  upon  mortgage  foreclosure  should  be  paid  by  the 
purchaser,  or  out  of  the  funds  derived  from  the  sale,  depends 
upon  whether  or  not  such  taxes  were  a  lien  on  the  property 
at  the  time  of  the  sale ;  *  for  the  general  rule  is  that  a  mort- 
gagee who  becomes  the  purchaser  at  a  foreclosure  sale  takes 
the  land  subject  to  taxes  which  were  levied  upon  the  property 
after  the  mortgage  was  given. ^ 

§  1021.  Same  —  Expenses  for  search  —  Unofficial 
search. — The  court  of  appeals  of  New  York,  in  the  case 
of  The  Equitable  Life  Assurance  Society  v.  Hughes,^  say  that 
the  expense  of  an  unofficial  search  made  by  a  title  insurance 
company  is  not  taxable  as  part  of  the  disbursements  on  fore- 
closure of  a  mortgage,  "according  to  the  course  and  practice 
of  the  court,"  there  being  no  express  provision  of  law  al- 

2  Windett  v.  Union  Mut.  Ins.  Co.  La.  Ann.  165,  9  So.  59. 

144  U.  S.  581,  36  L.  ed.  551,  12  Sup.  3  German    Sav.     &    L.     Soc.    v. 

Ct.  Rep.  751.  Hutchinson,  68  Cal.  52,  8  Pac.  627. 

The  lien  of  taxes  alleged  to  have  ^Cutting  v.  Tavares,  O.  &  A.  R. 

been  paid  by  a  mortgagee,  and  his  Co.  61  Fed.  150. 

privilege     of     subrogation    to    the  ^  Wooten  v.  Sugg,  114  N.  C.  295, 

rights  of   the  state,   cannot  be   en-  19  S.  E.  148. 

forced   against   the   proceeds   when  ^  i25  N.  Y.  106,  26  N.  E.  1,  34  N. 

marshaled  for  distribution,  without  Y.  S.  R.  591,  19  Civ  Proc.  Rep.  326, 

clear   proof   that    the    taxes    were  11  L.R.A.  280.     See  also  Mayer  v. 

paid,   with  the   amounts   and  years  Jones,  132  App.  Div.  106,  116  N.  Y. 

stated.     Brady  v.  His  Creditors,  43  Supp.  300. 


1021] 


FEES^    COSTS    AND    DISBURSEMENTS. 


1409 


lowing  such  item,  although  the  expense  of  an  official  search 
by   a   county   clerk    can    be   taxed.'      A    reasonable   amount 


'  In  this  case,  at  the  commence- 
ment of  the  action  to  foreclose,  the 
plaintiff's  attorney  obtained  a 
search  of  the  title  of  the  mortgaged 
premises  from  the  Lawyers'  Title 
Insurance  Company  of  New  York, 
a  corporation  organized  under  the 
laws  of  New  York.  N.  Y.  Laws, 
1885,  c.  538.  The  plaintiff  claimed 
the  sum  paid  for  this  search  should 
be  taxed,  as  lawful  disbursement,  in 
the  bill  of  costs.  Mr.  Justice  Earl, 
who  writes  the  opinion  of  the  court, 
discusses  the  question  very  fully, 
reviewing  the  statutes  and  authori- 
ties.    He  says,  in  part : 

"There  is  nothing  in  the  act 
under  which  the  Lawyers'  Title  In- 
surance Company  was  organized 
making  its  searches  official,  or  its 
certificates  as  to  title  evidence  in 
any  court.  The  searches  made  by  it 
have  no  greater  force  or  value  in 
the  law  than  an  unofficial  search 
made  by  an  individual ;  and  unless 
the  plaintiff  would  have  been  en- 
titled to  the  taxation  of  this  item  if 
the  search  and  charge  therefor  had 
been  made  by  an  individual,  its 
claim  fails.  At  common  law, 
neither  costs  nor  disbursements 
were  allowed  to  the  prevailing  party 
in  any  case,  and  their  allowance  has 
always  been  regulated  by  statute. 
Unless,  therefore,  the  plaintiff  can 
point  to  some  statute  authorizing 
the  clerk  to  allow  and  tax  this  item, 
the  decision  below  is  right.  After 
costs  and  disbursements  were  al- 
lowed by  law,  they  were  confined 
to  certain  fees  payable  to  coun- 
selors, solicitors,  and  attorneys,  and 
to  payments  made  to  officers  who 
Mortg.  Vol.  II.— 89. 


were  entitled  to  charge  fees  for 
official  services,  arid  to  the  legal 
fees  of  witnesses.  The  first 
comprehensive  statute  in  this  state 
which  we  have  been  able  to  find 
regulating  the  fees  of  attorneys, 
counselors,  solicitors  and  public  of- 
ficers, is  the  act  of  1801.  N.  Y.  Laws, 
1801,  c.  190.  That  act  was  re-enact- 
ed, with  some  amendments,  in  the 
Revised  Laws  of  1813.  2  N  Y.  Rev. 
Laws,  1813,  p.  3.  In  these  statutes, 
minute  provisions  were  made  for 
the  fees  of  attorneys,  counselors, 
solicitors,  officers  and  witnesses, 
and  the  fees  thus  specified  were  all 
the  fees  which  were  taxable  in 
favor  of  any  party  entitled  to  re- 
cover them.  The  whole  subject  of 
fees  was  again  regulated  by  the  Re- 
vised Statutes,  N.  Y.  Rev.  Stat.  pt. 
III.  c.  10,  titles,  3,  4,  and  in  all 
these  statutes  it  was  made  illegal 
and  criminal  for  any  officer  or  per- 
son to  take  or  exact  any  other  or 
greater  fee  than  that  specified  in  the 
law.  Section  30,  title  3,  contained 
a  general  provision,  as  follows : 
'The  actual  disbursements  of  a 
solicitor  in  the  court  of  chancery, 
or  of  an  attorney  in  the  supreme 
court,  necessarily  incurred  in  cases 
not  herein  specified,  which  shall  be 
proved  by  affidavits  and  shall  be 
deemed  reasonable  by  the  taxing  of- 
ficer, may  be  allowed  in  the  tax- 
ation of  costs.'  A  similar  clause, 
in  the  following  language,  was  con- 
tained in  the  Revised  Laws  of  1813. 
2  N.  Y.  Rev.  Laws  (1813),  p.  13. 
And  the  solicitor  is  to  be  allowed, 
in  the  taxation  of  costs,  for  all 
postage    and    other    disbursements 


1410 


MORTGAGE    FORECLOSURES. 


[§    1021 


expended  for  searches  for  taxes  may  be  included  by  the  referee 


actually  and  necessarily  incurred  or 
paid  in  the  cases  not  specified.'  The 
precise  scope  of  the  clause,  'neces- 
sarily incurred  or  paid  in  the  cases 
not  specified,'  is  not  entirely  plain; 
but  "ve  believe  it  has  always  been 
construed  tn  mean  the  fees  of  of- 
ficers,— fees  of  same  character  as 
those  mentioned,  though  not  speci- 
fied ;  and  these  general  clauses  have 
never  been  held  to  extend  further. 
The  sums  disbursed  by  solicitors 
and  attorneys  for  stationery,  blanks, 
for  traveling  and  tavern  expenses, 
and  for  many  other  purposes,  are 
necessary,  and  yet  it  has  never  been 
supposed,  that,  under  the  general 
language  above  quoted,  such  items 
were  taxable  as  disbursements. 

"In  Kenney  v.  Vanhoriie,  2  John. 
(N.  Y.)  108,  it  was  held  that  the 
expenses  of  executing  a  commis- 
sion were  not  to  be  taxed,  because 
they  were  not  within  the  provisions 
of  the  act  regulating  taxable  costs 
and  disbursements.  In  that  case  the 
court  said  :  'The  preparing  or  mak- 
ing up  of  cases  for  argument  in  the 
cause  is  not  comprehended  in  any 
of  the  particular  services  specified 
in  the  act ;  and  unless  it  comes 
within  some  one  of  the  services 
provided  for  by  the  act,  it  cannot 
be  taxed ;'  thus  showing  that,  in  the 
opinion  of  the  court  at  that  time, 
nothing  could  be  taxed  except  what 
was  particularly  specified  in  the  act. 

"In  Hovey  v.  Hovcy,  5  Paige  Ch. 
(N.  Y.)  551,  it  was  held  that  the 
solicitor  was  not  entitled  to  have 
taxed  the  expense  of  ascertaining 
the  residence  of  the  defendants  as 
a  necessary  disbursement,  and  that 
the  only  disbursements  which  were 
properly    taxable    under    the    pro- 


visions in  the  fee  bill  were  dis- 
bursements by  the  solicitors  for 
postage,  for  exemplifications  to  be 
used  in  the  suit,  for  necessary 
searches  in  the  public  officers,  for 
the  publication  of  notices  required 
by  law  or  the  practice  of  the  court, 
and  other  disbursements  of  a  like 
nature.  The  chancellor  said : 
'There  are  many  cases  of  disburse- 
ments by  an  attorney  or  solicitor 
for  the  benefit  of  his  client,  which 
are  not  taxable  against  the  adverse 
party  as  costs  in  the  cause,  but 
which  form  a  proper  subject  of  al- 
lowance to  the  attorney  or  solicitor 
as  against  his  own  client.'  The 
Code  of  Civil  Procedure  (N.  Y. 
Code  Civ.  Proc.  §  3256)  now  speci- 
fies the  disbursements  which  a 
party  entitled  to  costs  may  include 
in  his  bill,  and  it  is  as  follows :  'A 
party  to  whom  costs  are  not  award- 
ed in  an  action  is  entitled  to  include 
in  his  bill  of  costs  his  necessary  dis- 
bursements, as  follows  :  The  legal 
fees  of  witnesses,  and  of  referees 
and  other  officers ;  the  reasonable 
compensation  of  commissioners 
taking  depositions ;  the  legal  fees 
for  publication,  where  publication  is 
directed,  pursuant  to  law ;  the  legal 
fees  paid  for  a  certified  copy  of  a 
deposition  or  other  paper  recorded 
or  filed  in  any  public  office,  neces- 
sarily used  or  obtained  for  use  on 
the  trial ;  the  reasonable  expenses 
of  printing  the  papers  for  a  hear- 
ing when  required  by  a  rule  of  the 
court ;  prospective  charges  for  the 
expenses  of  entering  and  docketing 
the  judgment,  and  the  sheriff's  fees 
for  receiving  and  returning  one 
execution  thereon,  including  the 
search  for  property  and  such  other 


1021] 


FEES^    COSTS    AND    DISBURSEMENTS. 


1411 


in  his  expenses  of  sale,  but  it  forms  no  part  of  the  costs  of 
foreclosure  for  which  judgment  may  be  entered.'* 


reasonable  and  necessary  expenses 
as  are  taxable  according  to  the 
course  and  practice  of  the  court,  or 
by  express  provision  of  law.'  There 
is  certainly  nothing  in  this  section 
which  authorizes  the  taxation  of 
this  item,  unless  it  be  the  last 
clause,  and  thus  we  are  brought  to 
the  inquiry  whether  the  item  is  tax- 
able 'according  to  the  course  and 
practice  of  the  court,  or  by  express 
provision  of  law.'  We  are  pointed 
to  no  express  provision  of  law,  and 
the  sole  inquiry,  therefore,  is  wheth- 
er it  is  taxable  'according  to  the 
course  and  practice  of  the  court.' 
The  supreme  court,  which  must  be 
presumed  to  be  familiar  with  its 
own  practice,  holds  that  it  is  not 
thus  taxable.  This,  the  court  could 
have  determined  from  its  own 
knowledge,  without  any  other  evi- 
dence. But  its  decision  is  amply 
supported  by  the  evidence  placed 
before  it,  and  we  can  perceive  no 
ground  upon  which  we  can  reverse 
it.  We  are  not  presumed  to  know 
as  well  as  that  court  the  practice 
which  prevails  therein  in  such  cases. 
"There  is  no  countenance  for  the 
taxation  of  this  seen  in  any  of  the 
authorities  to  which  our  attention  is 
here  called.  In  Perry  v.  Griffin,  7 
How.  (N.  Y.)  Pr.  263,  it  was  held 
that  nothing  can  be  allowed  on  the 
taxation  of  costs  for  money  paid  to 
a  commissioner  to  take  testimony  in 
another  state,  and  for  witnesses  at- 
tending before  the  commissioner. 
A  different  rule  was,  however,  laid 
down  in  Finch  v.  Calvert,  13  How. 
(N.  Y.)  Pr.  13,  where  it  was  held 
that  the  word  'disbursements,'  men- 
tioned in  the  Code,  N.  Y.  Code  Civ. 


Proc.  §  311,  has  a  more  extensive 
meaning  under  the  present  than 
under  the  former  system,  and  in- 
cludes necessary  expenses  in  exe- 
cuting a  commission  in  a  foreign 
state.  In  Case  v.  Price,  17  How. 
(N.  Y.)  Pr.  348,  it  was  held  that 
the  plaintiff  in  a  foreclosure  suit 
who  employs  a  constable  or  private 
person  to  serve  a  summons  and 
complaint  and  notice  of  the  object 
of  the  action  may  recover,  as  dis- 
bursements, a  reasonable  sum  for 
such  service.  In  Picrrcpont  V. 
Loveless,  4  Hun  (N.  Y.)  681,  the 
expenses  incurred  by  a  party  in 
serving  subpoenas  upon  witnesses 
were  not  allowed  as  necessary  dis- 
bursements. In  Provost  v.  Farrell, 
13  Hun  (N.  Y.)  303,  the  fees  paid 
to  a  stenographer,  and  for  the 
preparation  of  maps  to  be  used  on 
the  trial,  were  refused  taxation  as 
costs,  although  the  law  at  that  time 
empowered  the  courts  to  appoint 
stenographers,  and  regulated  the 
price  which  they  could  charge  for 
copies  of  notes.  In  Colton  v.  Sim- 
mons, 14  Hun  (N.  Y.)  75,  it  was 
held  that  compensation  paid  by  the 
prevailing  party  to  the  stenographer 
for  his  services  at  the  trial,  cannot 
be  taxed  as  costs.  In  Rothery  v. 
New  York  Rubber  Company,  24 
Hun  (N.  Y.)  172,  it  was  decided 
that  a  party  could  not  include  in  his 
bill  of  costs  the  amount  paid  to  the 
surveyor  for  making  the  survey 
and  plans  used  on  the  trial.  That 
decision  was  affirmed  in  this  court. 
Rothery  v.  The  New  York  Rubber 
Co.  90  N.  Y.  30.  In  Pfaudlcr  v. 
Sargent,  43  Hun  (N.  Y.)  154,  the 
fees  of  a  stenographer  for  a  copy 


1412  MORTGAGE    FORECLOSURES.  [§    1022 

§  1022.  Interest  on  advancements. — The  supreme  court 
of  Iowa,  in  the  case  of  Butterfield  v.  Hungerford,^  say  that 
where  a  mortgagee  pays  taxes  and  other  prior  claims  to  pro- 
tect his  own  lien,  he  should  not  be  allowed  more  than  6  per 
cent,  per  annum  interest  on  such  advances,  as  against  a  junior 
incumbrancer  in  a  foreclosure  proceeding,  though  he  may  have 
an  agreement  for  10  per  cent,  with  the  mortgagor. 

§  1023.  Interest  on  costs. — When  costs  in  a  mortgage 
foreclosure  are  adjudicated  and  directed  to  be  added  to  the 
security,  that  is  equivalent  to  directing  them  to  be  charged 
on  the  estate  ^  and  they  will  carry  interest  from  the  date  of 
the  taxing,  but  not  from  that  of  the  order  of  the  court.*" 
This  is  on  the  theory  that  a  debt  secured  by  a  legal  or  an 
equitable  mortgage  will,  unless  something  is  said  or  may  be 
implied  to  the  contrary,  carry  interest;  and  it  is  thought  to 
follow  as  a  corollary  that,  when  the  court  has  once  decided  that 
there  is  a  charge,  the  sum  charged  must  bear  interest."  But 
it  is  thought  that  interest  on  the  costs  under  the  judgment 
of  foreclosure  and  decree  of  sale  cannot  be  charged  against 

of  his  minutes  were  held  not  to  be  l**  Eardley  v.  Knight,  L.  R.  41  Ch. 

taxable  as  costs,    even    when    pro-  Div.  537,  540,  61  L.  T.  N.  S.  780, 

cured    by   party   to    enable    him   to  781 ;  Lippard  v.  Ricketts,  L.  R.   14 

propose    amendments    to    the   case.  Eq.  241.     But  see  Healy  v.  Protec- 

In  Mark  v.  Buffalo,  87  N.  Y.   185,  tion  Mutual  Fire  Ins.   Co.  213  111. 

it  was  held  that  sums  paid  for  plans  99,  72  N.  E.  678. 

and  measurements,   and  compensa-  ^^  Lippard  v.  Ricketts,    L.    R.    14 

tion   to   experts,  beyond  their   fees  Eq.  241 ;  In  re  Kerr's  Policy,  L.  R. 

as  witnesses,  were  not  properly  tax-  8  Eq.  331. 

able  as  necessary  disbursements.  Equitable  mortgages  bear  inter- 
There  is  no  warrant  in  these  au-  est. — In  re  Kerr's  policy,  supra,  it 
thorities  for  holding  that  the  ex-  was  held  that  where  a  simple  con- 
pense  of  an  unofficial  search  can  be  tract  debt  hzis  been  secured  by  de- 
allowed  as  a  disbursement."  posit  of  title  deeds,  unaccompanied 
7a  Mayer  v.  Jones,  132  App.  Div.  by  any  stipulation  as  to  interest,  or 
106,   116  N.  Y.   Supp.  300.  by     any     memorandum     from    the 

8  68  Iowa,  249,  26  N.  W.  136.  terms  of  which  the  exclusion  of  a 

9  Eardley  v.  Knight,  L.  R.  41  Ch.  right  to  recover  interest  can  be  in- 
Div.  537,  540,  61  L.  T.  N.  S.  780,  ferred,  the  mortgagee  is  entitled  to 
781.  interest  on  the  debt.     To  the  same 


1023] 


FEES^    COSTS    AND    DISBURSEMENTS. 


1413 


the  estate  in  those  cases  where  they  are  not  directed  by  the 
court  to  be  added  to  the  amount  secured. ^^ 


effect  is  Casey  v.  Doyne,  5  Ir.  Ch. 
104. 

12  Interest  on  the  costs  allowed  in 
foreclosure  was  asked  for  in  the 
case  of  Eardley  v.  Knight,  L.  R. 
41  Ch.  Div.  537,  61  L.  T.  N.  S.  780, 
781,  and  Mr.  Justice  Kay  said : 
"The  defendants  claim  interest  on 
those  costs ;  that  is  to  say,  on  costs 
in  a  foreclosure  action.  For  that 
I  find  no  principle  or  authority.  If 
that  were  allowed  in  every  case  of 
foreclosure,  the  mortgagor  could 
not  redeem  until  payment,  not  only 
of  principal,  interest  and  costs,  but 
also  of  interest  on  costs.  I  never 
heard  of  any  such  rule.  But  here  it 
is  said  that  there  has  been  a  de- 
cision at  common  law  in  the  case 
of  Pyman  v.  Burt,  W.  N.  1884,  p. 
100,  that  .  .  .  the  costs  should 
carry  interest.  But  it  does  not  fol- 
low that  the  costs  are  a  charge  on 
the  estate.  The  costs  must  be  got 
from  the  mortgagor  personally,  not 
charged  on  the  estate.  Then  I  am 
told  the  judgment  in  the  present 
case  was  the  subject  of  appeal,  and 


that  the  appeal  was  dismissed  with 
costs,  the  order  of  the  Court  of  Ap- 
peals directing  that  the  costs  of  the 
appeal  should  be  paid  by  the  plain- 
tiff to  the  defendants,  and  that  the 
costs  remaining  unpaid  by  the  plain- 
tiff might  be  added  by  the  defend- 
ants to  their  security.  Adding  the 
costs  to  the  security  was  of  course 
adding  them  to  the  capital  moneys, 
and  treating  them  as  charged  on  the 
estate,  and  I  have  the  authority  of 
Lifford  V.  Rickctts,  L.  R.  14  Eq. 
291,  41  L.  J.  Ch.  595,  which  is  a 
decision  that,  where  costs  are  di- 
rected to  be  added  to  moneys  se- 
cured by  a  deed,  and  to  stand 
charged  on  the  property  comprised 
in  the  deed,  the  costs  carry  inter- 
est." {Pyman  v.  Burt,  was  a  case 
where  the  mortgagor  had  brought 
an  action  to  set  aside  the  mortgage, 
which  action  was  dismissed  with 
costs,  and  on  the  counterclaim 
the  usual  foreclosure  decree  was 
made,  and  an  account  directed  as 
to  what  was  due  the  defendants 
under  the  mortgage.). 


CHAPTER  XXXVII. 

REDEMPTION— NATURE  AND  EXTENT  OF  RIGHT. 

§  1024.  Definition  of   redemption. 

§  1025.  Right  of  redemption. 

§  1026.  Origin  of  doctrine. 

§  1027.  Nature  and  extent  of  right. 

§  1028.  Reciprocal  with  right  to  foreclose. 

§  1029.  An   incident   of   every  mortgage. 

§  1030.  Same — Exceptions  to  the  rule. 

§  1031.  A  creature  of  the  law. 

§  1032.  Right  an  equitable  one. 

§  1033.  A  favorite  of  equity. 

§  1034.  Equitable  and  legal  rights  subject  to. 

§  1035.  Assignment  of  mortgage  on  redemption. 

§  1036.  Waiver  of  right  of  redemption. 

■§  1037.  Surrender  of   right  of  redemption. 

§  1038.   Stipulations   or   agreements   barring. 

§  1039    Right  of  an  estate  in  lands. 

§  1040.  Same — Alabama  doctrine. 

§  1041.  Same  — A  rule  of  property. 

§  1042.  Restriction  of  right  to  redeem — To  particular  person. 

§  1043.  Same — To  particular  time. 

:§  1044.  Same — By  contract  after  breach  of  condition. 

§  1045.  Evasion  of  equitable  rule. 

§  1046.  Payment  of   additional   sum  and  taking  of  title. 

§  1047.  Sale  of  equity  of  redemption  to  mortgagee. 

§  1048.  Same — Setting  sale  aside. 

§  1049.   Same — Rule  governing  courts. 

§  1050.  Merger  of  mortgage  in  equity  of  redemption. 

§  1051.  Redemption  money — Lien  for. 

§  1052.  On  sale  under  power. 

§  1053.  Extinguishment  of   right  of  redemption. 

§  1054.  Same — By  action  and  sale. 

§  1024.  Definition  of  redemption. — Literally  speaking-, 
the  word  redemption  signifies  the  act  of  redeeming,  or  the  state 
of  being  redeemed;  a  ransom,  a  purchase,  a  deliverance,  a  re- 

1414 


I     1025]  REDEMPTION.  1415 

lease.  It  comes  from  the  Latin  word  redimerc,  to  buy  back.^^ 
In  law,  the  redemption  of  lands  signifies  the  recovering  or  dis- 
encumbering of  property  by  one  who  had  a  right  or  an  inter- 
est— either  legal  or  equitable — therein,  subject  to  the  lien  of 
the  incumbrance,  or  a  defeasible  conveyance." 

§  1025.  Right  of  redemption. — The  right  of  redemption 
is  the  right  of  the  mortgagor,  or  any  one  who  has  a  legal 
or  equitable  interest  in  the  land,  to  satisfy  the  mortgage  and 
have  the  estate  discharged  therefrom.^*  At  common  law, 
upon  the  breach  of  the  condition  the  estate  vested  in  the  mort- 
gagee becomes  indefeasible,  but  the  hardship  of  this  rule  early 
won  the  leniency  of  the  court  of  equity,  and  the  mortgagor 
was  allowed  to  redeem  within  a  reasonable  time,  by  paying 
the  amount  actually  due ;  the  debt  being  regarded  as  the  prin- 
cipal thing.  Eventually  this  estate  came  to  be  regarded  as  a 
distinct  estate  vested  in  the  mortgagor,  which  is  still  jealously 
protected.  In  most,  if  not  all,  of  the  states,  proceedings  to 
foreclose  the  equity  of  redemption  of  the  mortgagor  and  those 
claiming  under  him,  are  regulated  by  statute,  and  these  regu- 
lations are  a  part  of  the  contract.^®  The  right  of  redemption 
from  the  lien  of  a  mortgage  before  breach  of  condition,  as 

13  Anderson's    L    Diet.    886;    VI.  them,  is  regulated  by  statute.    The 

Cent.  Diet.  &  Cycl.  5019.  remedy  thus  proscribed,  when  exe- 

1*  Anderson's    L.    Diet.    886;    VI.  euted,   enters   into    the    eonvention 

Cent.  Diet.  &  Cycl.  5019.  of   the  parties   in   so   far  that   any 

15  See  post,  chap,  xlii.,  "Terms,  change  by  legislative  authority 
Conditions,  Modes  and  Effects."  which  affects  it  substantially,  to  the 

16  See  Smith  v.  People's  Bank,  24  injury  of  the  mortgagee,  is  held  to 
Me.  185,  193;  Abraham  v.  Cheno-  be  a  law  'impairing  the  obligation 
"weth,  9  Oreg.  348,  351 ;  Walker  v.  of  contracts,'  within  the  meaning  or 
King,  44  Vt.  601,  612;  Peugh  v.  the  provision  of  the  constitution." 
Davis,  96  U.  S.  337,  24  L.  ed.  775;  Citing  Williamson  v.  Doe,  7  Blackf 
Clark  V.  Reyburn,  75  U.  S.  (8  (Ind.)  13;  Branson  v.  Kinsie,  42  U. 
Wall.)  321,  19  L.  ed.  354.  S.     (1    How.)   311;   11  L.  ed.   143. 

In  Clark  v.  Reyburn,  supra,  Mr.  The  same  is  also  the  case  regarding 

Justice     Swayne     says :      "In    this  the     interests    and    rights    of    the 

country  the  proceeding  in  most  of  mortgagor, 
the   states,  and,   perhaps,   in   all   of 


1416  MORTGAGE    FORECLOSURES.  [§     1026 

we  shall  see  hereafter,"  is  a  legal  right,  and  after  a  breach 
of  condition,  it  is  an  equitable  right."  Used  with  strict  pro- 
priety, the  term  "equity  of  redemption,"  is  applicable  to  the 
equitable  right  only.  The  "equity  of  redemption"  is  that  in- 
terest in  the  land  which  is  held  by  the  mortgagor,  before  fore- 
closure; while  the  "right  of  redemption"  is  not  an  interest  in 
the  land  at  all,  but  a  mere  personal  privilege  given  by  statute 
to  the  mortgagor  after  the  land  has  been  sold  under  the  mort- 


§  1026.  Origin  of  doctrine. — The  doctrine  of  the  right 
of  redemption  was  introduced  into  English  jurisprudence  from 
that  great  fountain-head  of  equitable  doctrines, — the  Roman 
or  civil  law.  According  to  the  doctrine  of  the  common  law,^" 
a  mortgage  was  an  estate  upon  condition,  which  became  abso- 
lute upon  the  failure  of  the  mortgagor  to  perform  the  condi- 
tion on  the  law  day,  that  is,  on  the  day  stipulated. ^^  Under 
the  equitable  doctrine,  failure  to  perform  the  condition  upon 
the  day  stipulated,  does  not  work  a  forfeiture  of  the  property, 
but  merely  invests  the  mortgagee  with  authority  to  sell  the 
property  and  from  the  proceeds  arising  from  such  sale  to 
repay  the  debt  or  obligation,  together  with  the  costs  of  sale. 
In  other  words,  under  the  equitable  doctrine,  a  mortgage  is 
merely  a  security  for  the  payment  of  the  debt.    This  principle 

"  See  post,  §§  1027,  1031,  1032.  remove    the    lien.     The    rights    to 

"See  post,   §§    1032,    1033.  foreclose     and     to    redeem    afford 

For  history  of  doctrine  of  equity  mutuality.      Connor  v.    Connor,   59 

of  redemption  and  the  development  Fla.  467,  52  So.  727. 

of    the    doctrine.      See   3    Kerr   on  21  At  common  law  the  mortgage 

Real  Prop.  §  2086,  et  seq.  was  regarded  as  a  conveyance  of  a 

19  Lewis  V.  McBride,  57  So.  705  conditional  estate,  and  upon  breach 
(Ala.).  of  its  conditions,  the  estate  became 

20  At  common  law  a  mortgagee  absolute,  but  to  relieve  the  hard- 
took  legal  title,  and  foreclosure  was  ship  of  this  rule,  courts  of  equity 
to  terminate  the  mortgagor's  right  gave  to  the  mortgagor  a  right  to 
to  redeem.  Under  the  statute,  the  redeem,  upon  payment  of  the  debt 
mortgagee  has  only  a  lien  and  fore-  secured,  within  a  reasonable  time, 
closure  enforces  the  lien.  The  right  See  Goodenozv  v.  Ewer,  16  Cal.46], 
of  redemption  now  is  to  satisfy  and  76  Am.  Dec.  540. 


§   1027] 


REDEMPTION. 


1417 


was  adopted  by  the  courts  of  equity  ^^  to  prevent  the  hardships 
and  the  injustice  resulting  at  common  law  from  a  failure  to 
comply  with  the  conditions  of  the  mortgage. 


§  1027.  Nature  and  extent  of  right 
from  a  mortgage  is  reciprocal  with  the  right  of  foreclosure,^* 


Right  to  redeem 


— In  California  a  mortgage, 
whatever  its  terms,  is  not  regarded 
as  a  conveyance  of  any  interest 
vesting  in  the  mortgagee  enabling 
him  to  recover  possession  without  a 
foreclosure  and  sale.  See  Jackson 
V.  Lodge,  36  Cal.  39;  Button  v. 
Worschaucr,  21  Cal.  621,  82  Am. 
Dec.  765;  Lord  v.  Morris,  18  Cal. 
488;  Boggs  v.  Fowler,  16  Cal.  559, 
76  Am.  Dec.  561. 

22  See  Fasten  v.  Miller,  60  Wis. 
494,  19  N.  W.  540. 

23  Connor  v.  Connor,  52  So.  727 
(Fla.)  See  post,  §  1028.  Also 
Boggs  v.  Fowler,  16  Cal.  559,  76 
Am.  Dec.  561 ;  Goodenow  v.  Ewer, 
16  Cal.  461,  76  Am.  Dec.  540;  John- 
son V.  Sherman,  15  Cal.  287,  76  Am. 
Dec.  481;  Clark  v.  Baker,  14  Cal. 
612,  76  Am.  Dec.  449;  Koch  v. 
Briggs,  14  Cal.  256,  73  Am.  Dec. 
651;  Haffley  v.  Maier,  13  Cal.  28; 
Nagle  v.  Macy,  9  Cal.  426;  Mc- 
Millan V.  Richards,  9  Cal.  365,  70 
Am.  Dec.  655 ;  Carpenter  v.  Bowen, 
42  Miss.  28;  Harper's  Appeal,  64 
Pa.  St.  315. 

In  California,  in  the  case  of 
Goodenow  V.  Ewer,  supra,  the 
court  say :  "In  this  state,  a  mort- 
gage is  not  regarded  as  a  convey- 
ance vesting  in  the  mortgagee  any 
estate  in  the  land,  either  before  or 
after  condition  broken.  It  is  re- 
garded, as  in  fact  it  is  intended 
by  the  parties,  as  a  mere  security, 
operating   upon   the   property   as   a 


lien  or  incumbrance  only.  Here 
the  equitable  doctrine  is  carried 
to  its  legitimate  result.  Between 
the  view  thus  taken  and  the 
common-law  doctrine — that  the 
mortgage  is  a  conveyance  of  a  con- 
ditional estate — there  is  no  con- 
sistent intermediate  ground.  In 
those  states  where  the  mortgage  is 
sometimes  treated  as  a  conveyance, 
and  at  other  times  as  a  mere  secur- 
ity, there  is  no  uniformity  of  de- 
cision. The  cases  there  exhibit  a 
fluctuation  of  opinion  between 
equitable  and  common  law  views 
on  the  subject,  and  a  hesitation 
by  the  courts  to  carry  either  views 
to  its  logical  consequences.  In  Mc- 
Millan V.  Richards,  9  Cal.  365,  70 
Am.  Dec.  655,  we  had  occasion  to 
consider  the  subject  at  great  length, 
and  to  observe  upon  the  diversity 
existing  in  the  adjudged  cases.  We 
there  asserted  what  had  previously 
been  held  in  repeated  instances,  the 
equitable  doctrine  as  the  true  doc- 
trine respecting  mortgages,  and 
have  ever  since  applied  it  under  all 
circumstances.  See  Nagle  v.  Macy, 
9  Cal.  426;  Haffley  v.  Maier,  U  Cal. 
13 ;  Koch  V.  Briggs,  14  Cal.  256, 
73  Am.  Dec.  651;  Clark  v.  Baker, 
14  Cal.  612,  76  Am.  Dec.  449;  and 
Johnson  v.  Sherman,  15  Cal.  287,  76 
Am.  Dec.  481.  When,  therefore,  a 
mortgage  is  here  executed,  the  es- 
tate remains  in  the  mortgagor,  and 
a   mere   lien   or   incumbrance   upon 


1418 


MORTGAGE    FORECLOSURES. 


[§  1027 


it  is  a  creature  of  the  law,^*  and  an  incident  of  every  mort- 
gaged^ The  statutory  right  of  redemption  appHes  to  sales 
under  decrees  in  mortgage  foreclosures  as  well  as  to  sales  un- 
der ordinary  judgments  at  law.^®  And  one  entitled  to  redeem 
land  from  the  holders  of  the  legal  title,  on  the  payment  of  a 
certain  balance  due,  has  the  same  right  of  redemption  from 
the  mortgagee  of  the  legal  title,  on  the  payment  of  that  sum.^' 
But  where  a  party  is  entitled  to  redeem  from  the  foreclosure  of 
a  prior  mortgage  he  cannot  gain  the  title  held  by  the  pur- 
chaser in  foreclosure  proceedings  except  by  redemption.^® 

It  is  said  in  the  case  of  Whitney  v.  Higgins,^^  that  parties 
to  a  foreclosure  suit  in  which  judgment  is  rendered  under 
which  a  sale  is  made,  are  restricted  to  the  statutory  period 


the  premises  is  created.  The  pro- 
ceeding for  a  foreclosure  of  the 
equity  of  redemption,  as  those 
terms  are  understood  where  the 
common-law  view  of  mortgages  is 
maintained,  is  unknown  to  our  sys- 
tem, so  far,  at  least,  as  the  owner 
of  the  estate  is  concerned.  The 
mortgagee  can  here,  in  no  case,  be- 
come the  owner  of  the  mortgaged 
premises,  except  by  purchase,  upon 
a  sale  under  judicial  decree  con- 
summated by  conveyance.  Pro- 
ceedings in  the  nature  of  a  suit  to 
foreclose  an  equity  of  redemption, 
held  by  a  subsequent  incumbrancer, 
may  undoubtedly  be  maintained  by 
a  purchaser  under  the  decree, 
where  such  incumbrancer  was  not 
made  a  party  to  the  original  suit 
to  enforce  the  mortgage.  Such  in- 
cumbrancer may  be  called  upon  to 
assert  his  right  by  virtue  of  his 
lien,  and  his  equity  of  redemption, 
extending  to  the  period  provided  by 
the  statute  of  limitations,  be  thus 
reduced  to  the  statutory  period  of 
six  months.  But  the  owner  of  the 
mortgaged     premises,      where     no 


power  of  sale  is  embraced  in  the 
mortgage,  cannot,  under  any  cir- 
cumstances, be  cut  off  from  his  es- 
tate, except  by  sale  in  pursuance  of 
the  decree  of  the  court.  See  Prac- 
tice Act,  §  260;  Whitney  v.  Hig- 
gins,  10  Cal.  547,  70  Am.  Dec.  748; 
Montgomery  v.  Tutt,  11  Cal.  190. 
To  give  validity  to  such  decree,  the 
owner  must  be  before  the  court 
when  it  is  rendered.  No  rights 
which  he  possesses  can  otherwise 
be  affected,  and  any  direction  for 
their  sale  would  be  unavailing  for 
any   purpose." 

24  See  post,  §   1034. 

25  See  post,  §  1029. 

The  right  to  redeem  lands  from 
a  sale  under  foreclosure,  under 
special  circumstances,  determined. 
Goodrich  v.  Friedersdorff,  27  Ind 
308. 

^^  McMillan  v.  Richards,  9  Cal. 
96,  70  Am.  Dec.  655. 

'^''Brooke  v.  Bordncr.  125  Pa.  St. 
470.  17  Atl.  467,  24  W.  N.  C.  53. 

^^  Simmons  v.  Taylor,  38  Fed. 
682. 

29  10  Cal.  547.  70  Am.  Dec.  748. 


§     1028]  REDEMPTION.  1419 

in  which  to  redeem.  The  rights,  after  decree,  depend  entirely 
upon  the  statute,  and  they  have  no  equity.  Such  is  also  the 
case  with  parties  acquiring  interests  pending  a  suit  to  enforce 
previously  existing  claims;  they  take  in  subordination  to  any 
decree  which  may  be  rendered,  as  do  those  whose  interests 
are  acquired  after  judgment  docketed  or  sale  made. 

In  all  those  cases  where  a  mortgage  debt  is  not  absolutely 
due  on  default  of  the  payment  of  interest,  but  only  at  the  elec- 
tion of  the  mortgagee  duly  declared,  in  the  absence  of  his  dec- 
laration the  right  to  redeem  and  prevent  the  sale,  on  payment 
of  the  interest  in  arrears,  is  not  destroyed  by  a  stipulation 
in  the  mortgage  authorizing  a  sale  of  the  property  as  an  en- 
tirety, and  the  payment  of  the  whole  debt,  in  case  of  a  sale 
for  any  default,  even  though  the  whole  debt  should  not  be 
due.'° 

§  1028.  Reciprocal  with  right  to  foreclose. — The  right 
of  a  mortgagor,  or  those  claiming  under  him,  to  maintain  an 
action  to  redeem  property  from  the  lien  of  a  mortgage,  is 
reciprocal  and  commensurate  with  the  right  to  foreclose. 
When  one  is  barred  the  other  is  barred.^^ 

This  is  a  general  rule  recognized  by  all  the  text  books  and 
decisions.  Hilliard,  in  his  work  on  the  law  of  mortgages, 
says :  'Tn  general,  the  respective  rights  of  mortgagee  and 
mortgagor  with  regard  to  a  foreclosure  on  the  one  hand, 
and  a  redemption  on  the  other,  are  treated  as  mutual ;  that  is, 
the  existence  of  the  former  is  held  to  involve  that  of  the  latter, 
and  vice  versa;  and  the  fact  that  the  one  cannot  legally  be  en- 
forced under  the  circumstances,  is  regarded  as  sufficient  to 
preclude  the  claim  for  the  other.^* 

^°  Chicago,  D.  &  V.  R.  R.  Co.  v.  (Ky.)    206;    King    v.    Meighen,   20 

Fosdick,    106   U.    S.   47,   27   L.   ed.  Minn.     264.       See     Henderson     v. 

47,  1  Sup.  Ct.  Rep.  10.  Crammar,   66   Cal.  336;    Wright   v. 

^"^  Cunningham    v.    Hawkins,    24  Ross,  2>6  CsX.  AZA;  Arrington  v.  Lis- 

Cal.  403.  85  Am.  Dec.  73 ;  Koch  v.  com,  34  Cal.  372.  94  Am.  Dec.  722 ; 

Briggs,    14   Cal.   256,   7Z   Am.    Dec.  Green  v.  Turner,  38  Iowa,  116. 

651;  Caufman  v.  Sayre,  2  B.  Mon.  3^2  Hill,  on  Mortg.   1. 


1420 


MORTGAGE    FORECLOSURES. 


[§    1029 


§  1029.  An  incident  of  every  mortgage. — The  right  of 
redemption  is  a  legal  incident  of  every  mortgage,'^  and  is 
guarded  by  the  courts  with  jealous  care.^*  The  rule  that  an 
instrument  that  is  once  a  mortgage  is  always  a  mortgage  is 
inflexible  ;^^  so  that  if  a  contract  is  in  reality  merely  a  se- 
curity, no  matter  what  may  be  the  form  of  the  instrument 
in  which  it  is  expressed,  the  right  of  redemption  attaches  '^ 
and  cannot  be  controlled  by  stipulations  or  agreements  ^'  de- 
signed to  abridge  or  bar  the  right. ^^  All  the  cases  show  that 
an  absolute  sale  and  defeasance  in  the  same  instrument  must 
be  a  mortgage  and  nothing  but  a  mortgage. ^^     The  learned 


33  Skeels  V.  Blanchard,  81  Atl.  913 
(Vt.) 

^^Lennell  v.  Lyford,  72  Me.  280. 
See  also  H.  B.  Claflin  Co.  v.  Mid- 
dlesex Banking   Co.    113   Fed.   958. 

35  Simon  v.  Schmidt,  41  Hun  318, 
2  N.  Y.  S.  R.  388;  Newcomb  v. 
Banham,  5  Vern.  8.  See  Jones  v. 
Gillett,  142  Iowa,  506,  118  N.  W. 
314. 

36  See  Clark  as  adm'r,  etc.  v. 
Scagraves,  186  Mass.  430,  71  N.  E. 
813;  Bobb  v.  Wolff,  148  Mo.  335, 
49  S.  W.  996.  See  also  Over  v. 
Carolus,  171  111.  552,  49  N.  E.  514. 

37  See  post,  §   1038. 

33  Lounsbury  v.  Norton,  59  Conn. 
170;  Tennery  v.  Nicholson,  87  111. 
464;  Bailey  v.  Bailey,  71  Mass.  (5 
Gray)  510;  Kelleran  v.  Brown,  4 
Mass.  443 ;  Youle  v.  Richards,  1  N. 
J.  Eq.  (1  Saxt.)  534,  23  Am.  Dec. 
722;  Clark  v.  Henry,  2  Cow.  (N. 
Y.)  32,  affirming  sub  nom  Henry 
V.  Davis,  7  John.  Ch.  (N.  Y.)  40; 
Dunham  v.  Dey,  15  John.  (N.  Y.) 
555,  8  Am.  Dec.  282;  James  v. 
Johnson,  6  John.  Ch.  (N.  Y.)  417; 
Dey  V.  Dunham,  2  John.  Ch.  (N. 
Y.)    189;   Holridge  v.   Gillespie,  2 


John.  Ch.  (N  Y.)  30;  Gillis  v. 
Martin,  2  Dev.  (N.  C.)  Eq.  470,  25 
Am.  Dec.  792;  Stocver  v.  Stoever, 
9  Serg.  &  R.  (Pa.)  434;  Kerr  v. 
Gilmore,  6  Watts  (Pa.)  408;  Steph- 
ens V.  S  her  rod,  6  Tex.  294,  55  Am. 
Dec.  776;  Stamper  v.  Johnson.  3 
Tex.  1 ;  Peugh  v.  Davis,  96  U.  S. 
332,  24  L.  ed.  775;  Watts  v.  Kel- 
ler, 56  Fed.  1;  Fontol,  Eq.  (4th 
Am.  ed.)  494,  note,  2  Story 
Eq.  Jan.  (13th  ed.)  §  1018.  See 
Harrington  v.  Foley,  108  Iowa,  287, 
79  N.  W.  64. 

39  Kerr  v.  Gilmore,  6  Watts 
(Pa.)  408;  Stephens  v.  Sherrod.  6 
Tex.  294,  55  Am.  Dec.  776;  Bobb  v. 
Wolff,  148  Mo.  335,  49  S.  W.  996; 
Duell  V.  Leslie,  207  Mo.  658,  106 
S.  W.  489.  See  Gibbs  v.  Haugho- 
wout,  207  Mo.  384,  105  S.  W.  1067. 
See  also  Brown  v.  Follette,  155  Ind. 
316,  58  N.  E.  197. 

One  who  desires  to  have  a  deed 
absolute  on  its  face  decreed  to  be 
a  mortgage,  must  offer  to  redeem. 
See  also  Gerhardt  v.  Tucker,  187 
Mo.  46,  85  S.  W.  552 ;  Mack  v.  Hill, 
28  Mont.  99,  72  Pac.  307. 

An  absolute  deed,  with  a  defeas- 


§   1029] 


REDEMPTION. 


1421 


judge  who  delivered  the  opinion  of  the  court  in  the  case  of 


ance,  is  a  mortgage :  Reading  v. 
Weston,  7  Conn.  143,  18  Am.  Dec. 
89 ;  Washburn  v.  Merrills,  1  Dey 
(Conn.)  139,  2  Am.  Dec.  59;  Bel- 
ton  V.  Avery,  2  Root   (Conn.)   279, 

1  Am.  Dec.  70;  Clark  v.  Lyon,  46 
Ga.  202;  Klock  v.  Water,  70  111. 
416;  Ewart  v.  Walling,  42  111.  453 
Preschbaker  v.  Feaman,  32  111.  475 
Tillson  V.  Boulton,  23  111.  648 
Crassen  v.  Swoveland,  22  Ind.  427 
Watkins  V.  Gregory,  6  Blackf. 
(Ind.)  113;  Harbison  v.  Lemon,  3 
Blackf.  (Ind.)  51,  23  Am.  Dec.  376; 
Montgomery  V.  Chadwick,  7  Iowa 
114;  Edrington  v.  Harper,  3  J.  J. 
Marsh.  (Ky.)  353,  20  Am.  Dec. 
145 ;  McLaughlin  v.  Shepherd,  32 
Me.  143,  52  Am.  Dec.  646;  Bennick 
V.  Whipple,  12  Me.  346,  28  Am. 
Dec.  186;  Chase's  Case,  1  Bland. 
Ch.  (Md.)  206,  17  Am.  Dec.  277; 
Campbell  v.  Dearborn,  109  Mass. 
130,  12  Am.  Rep.  671;  Woodward  v. 
Pickett,  74  Mass.  (8  Gray.)  617; 
Bayley  v.  Bailey,  71  Mass.  (5 
Gray.)    505;  Erskine  v.   Townsend, 

2  Mass.  493,  3  Am.  Dec.  71; 
Archambau  v.  Green,  21  Minn.  520; 
PF^ide  V.  Ge/i/,  21  Minn.  449;  //i7/ 
V.  Edwards,  11  Minn.  22;  £hoj  v. 
Sutherland,  11  Mich.  538;  O'Neill 
V.  Capelle,  62  Mo.  202;  Sharkey  v. 
Sharkey,  47  Mo.  543;  Copeland  v. 
Yoakum,  38  Mo.  349;  Tibeau  v. 
Tibeau,  22  Mo.  77;  H^t/^on  v. 
Drumrite,  21  Mo.  325;  Fom/^  v. 
Richards,  1  N.  J.  Eq.  (1  Saxt.) 
534,  23  Am.  Dec.  722;  C/arfe  v. 
Hewry,  2  Cow.  (N.  Y.)  324,  affirm- 
ing sub  nom  Henry  v.  Davis,  7 
John.  Ch.  (N.  Y.)  40;  Dunham  v. 
Dfy,  15  John.  (N.  Y.)  554,  8  Am. 
Dec.  282;  Dey  v.  Dunham,  5  John. 
Ch.  (N.  Y.)  189;  Glover  v.  F(7jn, 
19  Wend.    (N.  Y.)    518;   Brown  v. 


Dean,  3  Wend.  (N.  Y.)  208;  Lane 
V.  5/zearj,  1  Wend.  (N.  Y.)  433; 
Robinson  v.  Willoughby,  65  N.  C. 
520;  Mason  v.  Hearn,  1  Busb.  (N. 
C.)  Eq.  88;  King  v.  Kincey,  1  Ired. 
(N.  C.)  Eq.  187,  36  Am.  Dec.  40; 
Gillis  V.  Martin,  2  Dev.  (N.  C.) 
Eq.  470,  25  Am.  Dec.  729;  Wilcox 
V.  Morris,  1  Murph.  (N.  C.)  L.  116, 

3  Am.  Dec.  678;  Marshall  v.  5/^w- 
ar^,  17  Ohio,  356;  Perkins  v.  Dibble, 
10  Ohio,  433,  36  Am.  Dec.  97; 
Harper's  Appeal,  64  Pa.  St.  319; 
Houser  v.  Lamont,  55  Pa.  St.  311, 
316,  93  Am.  Dec.  755;  Guthrie  v. 
Kahle,  46  Pa.  St.  331 ;  Rutenbaugh 
V.  Ludwick,  31  Pa.  St.  138;  Fried- 
ley  V.  Hamilton,  17  Serg.  &  R. 
(Pa.)  70,  17  Am.  Dec.  638;  Johns- 
ton V.  Gray,  16  Serg.  &  R.  (Pa.) 
361,  16  Am.  Dec.  577;  Kelley  v. 
Thompson,  7  Watts  (Pa.)  405; 
Jaqiies  V.  Weeks,  7  Watts  (Pa.) 
268;  Kerr  v.  Gilmore,  6  Watts  (Pa.) 
405;  Colwell  v.  Woods,  3  Watts 
(Pa.)  188,  27  Am.  Dec.  345;  Manu- 
facturers &  Mechanics  Bank  v. 
Bank   of  Pennsylvania,  7  Watts  & 

5.  (Pa.)  334,  42  Am.  Dec.  240; 
Hickjnan  v.  Cantrell,  9  Yerg. 
(Tenn.)  172,  30  Am.  Dec.  396; 
Bennet   v.   Holt,   2   Yerg.    (Tenn.) 

6,  24  Am.  Dec.  455 ;  Baxter  v.  Dear, 
24  Tex.  17,  76  Am.  Dec.  89;  Dab- 
ney  v.  Green,  4  Hen.  &  M.  (Va.) 
101,  4  Am.  Dec.  503;  Ross  v.  Nor- 
vell,  1  Wash.  (Va.)  14,  1  Am.  Dec. 
422 ;  Hyndman  v.  Hyndman,  19  Vt. 
9,  46  Am.  Dec.  171 ;  Klinck  v.  Price, 

4  W.  Va.  4,  6  Am.  Rep.  268 ;  Brink- 
man  V.  Jones,  44  Wis.  498;  '^/oio 
V.  Roe,  14  Wis.  453;  Knowlton  v. 
Walker,  13  Wis.  264;  5"^cond  PFaro 
BanJfe  V.  Upmann,  12  Wis.  499 ;  Dow 
V.  Chamberlin,  5  McL.  C.  C.  281. 

Equity    looks    to    the    substantial 


1422 


MORTGAGE    FORECLOSURES. 


[§     1029 


Kerr  v.  Gilmore  *°  says :  "Originally  it  would  seem  that  what 
are  now  called  mortgages,  whether  contained  in  one  instru- 
ment or  divided  into  an  absolute  deed  and  a  defeasance  on  a 
separate  paper,  were  considered  at  common  law  as  sales  on 
condition;  and  if  the  condition  was  not  performed  at  the  day, 
the  estate  became  absolute,  and  could  not  be  recovered ;  pay- 
ment or  tender,  afterwards,  were  equally  unavailing;  and  per- 
haps we  may  suppose  this  was  the  intention  of  one  party,  and 
the  terms  submitted  to,  by  the  other,  under  the  infatuation 
which  seems  at  all  times  to  have  cheered  the  heart  of  the 
debtor  with  the  hope  that  he  would  soon  be  able  to  pay.  It  is 
unnecessary  to  inquire  at  what  time  and  by  what  gradations 
courts  of  chancery  took  cognizance  of,  and  relieved  the  debtor 
from,  contracts  which  were  often  ruiniously  hard.  The 
courts  of  law  at  length  took  notice  that  mortgages  were  only 
securities  for  money.  'The  case  of  mortgages,'  says  Chan- 
cellor Kent,*^  'is  one  of  the  most  splendid  instances  in  the 
history  of  our  jurisprudence,  of  the  triumph  of  equitable  prin- 
ciple over  technical  rules,  and  the  homage  which  those  prin- 
ciples have  received  by  their  adoption   m  courts  of   law.'  " 


object  of  the  conveyance,  and  will 
consider  an  absolute  deed  as  a 
mortgage,  whenever  it  is  shown  to 
have  been  intended  as  a  security. 
Fonbl.  Eq.  (4th  Am.  ed.)  494,  note. 
See  Kelleran  v.  Brown,  4  Mass. 
443;  James  v.  Johnson,  6  Johns.  Ch. 
(N.  Y.)  417;  Henry  v.  Davis,  7 
John.  Ch.  (N.  Y.)  40;  Stover  v. 
Stover,  9  Serg.  &  R.  (Pa.)  434; 
Hughes  v.  Edwards,  22  U.  S.  (9 
Wheat.)  489,  6  L.  ed.  142.  See  also 
Fridley  v.  Somerville,  60  W.  Va. 
272,  54  S.  E.  502. 

"As  to  what  constitutes  a  mort- 
gage," says  Story  (2  Story  Eq.  Jur. 
(13th  ed.)  §  1018),  "there  is  no 
difficulty  whatever  in  courts  of 
equity,  although  there  may  be  tech- 
nical   embarrassment    in    courts    of 


law.  The  particular  form  or  words 
of  the  conveyance  are  unimportant; 
and  it  may  be  laid  down  as  a  gen- 
eral rule,  subject  to  few  exceptions, 
that  wherever  a  conveyance,  as- 
signment, or  other  instrument, 
tri^nsferring  an  estate,  is  originally 
intended,  between  the  parties,  as  a 
security  for  money,  or  for  any 
other  incumbrance,  whether  this  in- 
tention appear  from  the  same  in- 
strument or  from  any  other,  it  is 
always  considered  in  equity  as  a 
mortgage ;  and  consequently  is  re- 
deemable upon  the  performance  of 
the  conditions  or  stipulations  there- 
of." 

40  6  Watts  (Pa.)  408. 

«4  Kent  Com.   (13th  ed.)    158 


§     1030]  REDEMPTION.  1423 

Hence,  as  long  as  the  instrument  is  one  of  security,  the  bor- 
rower has  the  right  to  redeem,  and  a  subsequent  release  of 
that  right  will  be  closely  scrutinized  to  guard  the  debtor  from 
oppression.  It  must  be  for  a  new  and  adequate  consideration 
or  it  will  not  be  upheld.*^ 

The  supreme  court  of  Oregon,  in  the  case  of  Wilson  v. 
Tarter,*^  say  that  an  owner  of  one  of  several  parcels  of  land 
sold  under  mortgage  foreclosure  without  making  him  a  party 
is  not  entitled  to  redeem  the  whole  of  the  mortgaged  premises 
against  the  wishes  of  the  mortgagee,  who  has  purchased  on 
the  sale;  but  the  latter  may  elect  whether  to  suffer  such  re- 
demption or  convey  such  parcel  alone.  And  in  some  of  the 
states  there  is  no  redemption,  as  a  matter  of  right,  from  a 
sale  of  land  by  a  county  auditor  under  a  school  fund  mort- 
gage. In  such  a  case  the  mortgagor  seeking  to  recover  the 
land  so  sold,  has  the  burden  of  proving  that  the  auditor,  in 
making  such  sale,  did  not  comply  with  the  statutory  require- 
ments.'*^ 

§  1030.  Same — Exceptions  to  the  rule. — There  are  ex- 
ceptions to  the  general  rule  as  laid  down  in  the  preceding 
section.  Thus  it  is  said  in  Parker  v.  Dacres,'*^  that  in  the 
state  of  Washington,  while  it  was  yet  a  territory,  there  was 
no  equity  of  redemption  in  a  mortgagor,  and  his  equities 
liad  to  be  fixed  by  the  court  in  its  decree  in  the  foreclosure 
suit.  Nor  can  the  provisions  of  the  statute  relating  to  re- 
demption after  execution  sales  be  deemed  to  extend  to  mort- 
gages. 

Another  exception  is  thought  to  be  in  favor  of  railroad 

^^  Linnell  v.  Lyford,  72  Me.  280.  offering  the  mortgaged  and  in  par- 

*3  22  Oreg.  504,  30  Pac.  499.  eels,  the  auditor  did  not  designate 

^  Bonnell  V.  Ray,  71  Ind.  141.  or    locate    each    particular   quantity 

Sale    by    auditor    under    school-  offered  according  to  1  Ind.  Rev.  St. 

fund    mortgage    is   not    invalid   be-  1876.  p.  801,  §  96.     Bonnell  v.  Ray, 

cause  the  affidavit  of  proof  of  pub-  71  Ind.  141. 

lication    of    notice    thereof    is    not  *5  2  Wash.  Tr.  439. 

signed   by   affiant;   nor   because,   in 


1424 


MORTGAGE    FORECLOSURES. 


[§    1031 


mortgages.  Thus,  under  the  Illinois  statute.*^  providing  a 
right  of  redemption  "where  lands  shall  be  sold  under  and 
by  virtue  of  any  decree  of  a  court  of  equity  for  the  sale  of 
mortgaged  lands,"  it  is  held  that  the  land  and  franchise  of 
a  railroad  might  be  sold  as  an  entirety,  without  the  right  of 
redemption  as  it  could  not  have  been  the  purpose  of  the 
legislature  to  compel  a  separate  sale  by  which  the  value  of 
each  would  be  lost.*'' 

§  1031.  A  creature  of  the  law. — The  right  of  redemption 
is  not  a  right  expressed  in  terms  by  the  parties  in  the  instru- 
ment ;  but  is  a  creature  of  the  law,  pure  and  simple.  We  have 
already  seen  *^  that  no  matter  what  may  be  the  ostensible  na- 
ture of  the  transaction,  or  the  form  of  the  instrument,  if  it 
is  intended  merely  as  a  security  for  the  payment  of  money, 
the  right  of  redemption  attaches.*^  The  sale  and  right  of  re- 
demption under  a  power  in  a  mortgage  are  governed  by  the 
law  in  force  at  the  time  the  mortgage  was  made.^° 

§  1032.  Right  an  equitable  one. — The  right  to  redeem 
an  estate  under  mortgage  after  a  breach  of  the  condition  has 
occurred  is  an  equitable  right  which  cannot  be  enforced  in  a 
suit  at  law.^^    And  where  the  mortgagee  has  entered  for  con- 


*6I11.  Rev.  Stat.  1869,  p.  397, 
§  27. 

^"^  Peoria  &  S.  R.  Co.  v.  Thomp- 
son, 103  111.  187;  Hammock  v. 
Farmers'  Loan  &  Trust  Co.  105  U. 
S.  77,  26  L.  ed.  1111. 

«See  ante,  §   1029. 

«  See  Plato  v.  Roe,  14  Wis.  453 ; 
Knowlton  v.  Walker,  13  Wis.  264; 
Orton  V.  Walker,  3  Wis.  576 ;  Rogan 
V.  Walker,  1  Wis.  527;  Seton  v. 
Slade,  7  Ves.  265,  273,  6  Rev.  124; 
Spurgeon  v.  Collier,  1  Eden.  55,  60. 

50  Smith  V.  Green,  41  Fed.  455 ; 
Haynes  v.  Treadway,  133  Cal.  400, 
65    Pac.   892;   Malone  v.  Roy,   134 


Cal.  344,  66  Pac.  313.  See  Green  v. 
Thornton,  8  Cal.  App.  160,  96  Pac. 
382;  Bremen  Mining  &  Milling  Co. 
V.  Bremen,  13  N.  M.  Ill,  79  Pac. 
806 ;  Geddis  v.  Packwood,  30  Wash. 
270,  70  Pac.  481 ;  Pawtucket  Mutual 
Fire  Ins.  Co.  v.  Landers,  5  Kan. 
App.  623,  47  Pac.  621. 

61  Randall  v.  Bradley,  65  Me.  43 ; 
Cranston  v.  Crane,  97  Mass.  459,  93 
Am.  Dec.  106 ;  Chapin  v.  Wright,  41 
N.  J.  Eq.  438,  5  Atl.  574;  Walker 
V.  Warner,  179  III.  16,  70  Am.  St. 
Rep.  85.  53  N.  E.  594;  Manhattan 
Life  Ins.  Co.  v.  Wright,  126  Fed. 
82,  61  C.  C  A.  138.     See  Parks  v. 


1033] 


REDEMPTION. 


1425 


dition  broken,  the  only  remedy  for  a  mortgagor  or  his  as- 
signee, after  payment  of  the  debt,  if  the  mortgagee  refuses  to 
relinquish  possession  of  the  mortgaged  premises,  is  by  bill  in 
equity. ^^  After  a  mortgage  debt  is  once  discharged,  there 
is  no  question  but  that  the  mortgagor  or  his  assignee  may 
compel  the  mortgagee  or  his  assignee  to  surrender  the  legal 
title.^^ 


§  1033.  A  favorite  of  equity. — The  right  to  redeem  is  a 
favorite  of  equity,  and  will  not  be  allowed  to  be  taken  away, 
except  upon  a  strict  compliance  with  the  steps  necessary  to 
divest  it.^*  Thus  the  mortgagee  will  not  be  permitted  to  ex- 
tinguish the  mortgagor's  equity  of  redemption  by  a  sale 
under  execution  at  law,  upon  a  judgment  obtained  upon  the 
mortgage  debt,  although  the  possession  has  been  removed  by 
action  at  law;  but  the  mortgagor  will  be  entitled  to  file  his 
bill  to  redeem." 


Worthington,  39  Tex.  Civ.  App. 
421,  87  S.  W.  720. 

^^Brobst  V.  Brock,  77  U.  S.  (10 
Wall.)  519,  19  L.  ed.  1002. 

^^  Smith  V.  Orton,  62  U.  S.  (21 
How.)  241,  16  L.  ed.  104. 

54  Chicago,  D.  &  V.  R.  R.  Co.  v. 
Fosdick,  106  U.  S.  47,  27  L.  ed.  47 ; 
Bigler  v.  Waller,  81  U.  S.  (14 
Wall.)  297,  20  L.  ed.  891 ;  Shillaber 
V.  Robinson,  97  U.  S.  68,  24  L.  ed. 
967.  See  Prondzinski  v.  Garbutt, 
8  N.  D.  191,  77  N.  W.  1012. 

55  Powell  V.  Williams,  14  Ala.  476, 
48  Am.  Dec.  105.  In  this  case  the 
question  whether  a  mortgagee  of 
real  estate  could  cause  the  mort- 
gaged premises  to  be  levied  upon 
and  sold  under  a  fieri  facias  to  sat- 
isfy the  debt  intended  to  be  se- 
cured was  presented  to  the  court 
for  the  first  time.    The  Court  saj' : 

Mortg.  Vol.  II.— 90. 


"It  has  been  repeatedly  held  that 
the  interest  of  a  mortgagor  in  pos- 
session, at  least  before  forfeiture, 
and  perhaps  afterwards,  may  be 
sold  under  an  execution  at  law 
against  his  estate,  at  the  suit  of  a 
third  person ;  and  that  the  pur- 
chaser would  acquire  a  right  to  the 
possession  as  against  the  mort- 
gagor, as  well  as  the  equity  of  re- 
demption. See  McGregor  &  Dar- 
ling V.  Hall,  3  Stew.  &  P.  (Ala.) 
397;  Perkins  &  Elliott  v.  May  field, 
5  Port.  (Ala.)  182;  Culluni  v. 
Emanuel,  1  Ala.  23,  34  Am.  Dec. 
757 ;  Doe  ex  dem.  Duval's  heirs  v. 
McLoskey,  1  Ala.  708;  P.  &  M. 
Bank  V.  Willis,  5  Ala.  770;  Stcver 
V.  Herring  ton,  7  Ala.  142,  41  Am. 
Dec.  86;  The  Br.  Bank  at  Mobile 
V.  Hunt,  8  Ala.  876;  Duval's  Heirs 
V.  The  P.  &  M.  Bank,  10  Ala.  636." 


1426  MORTGAGE    FORECLOSURES.  [§    1034 

In  the  case  of  Clarkson  v.  Creely/^  where  real  estate  was 
conveyed  in  trust  to  secure  the  payment  of  a  debt,  and  the 
creditor  stated  that  he  should  not  sell  the  property  without 
first  giving  actual  notice  of  his  intention  so  to  do,  and  after- 
wards sold  the  property  without  giving  such  notice,  the  sale 
was  set  aside  and  the  debtor  had  permission  to  redeem. 

In  California,  since  the  enactment  of  the  civil  code,"  a 
mortgagee  who  forecloses  a  deed,  absolute  in  form,  but  in 
fact  a  mortgage,  without  at  the  same  time  foreclosing  another 
deed  given  to  secure  the  same  indebtedness,  but  upon  different 
property,  is  not  entitled  to  a  personal  judgment  for  deficiency, 
the  right  of  the  mortgagor  to  redeem  is  not  affected  by  the 
fact  that  no  judgment  for  deficiency  has  been  docketed.^* 
The  statute  of  a  State  ^^  validating  the  record  of  conveyances 
previously  made,  cannot  have  any  effect  upon  previous  fore- 
closures, or  deprive  land  owners  of  their  right  to  redeem  mort- 
gaged premises.^" 

§  1034.  Equitable  and  legal  rights  subject  to. — The  su- 
preme court  of  Tennessee,  in  the  case  of  Reason  v.  Porter- 
field,^^  say  that  an  equitable  interest  is  subject  to  redemption 
as  well  as  a  legal  interest ;  but  the  purchaser  of  land  at  a  chan- 
cery sale  acquires  an  equitable  title,  upon  the  implied  condition 
that  the  purchase  money  shall  be  paid  at  the  time  stipulated, 
the  payment  of  the  consideration  being  essential  to  complete 
the  equity;  and  if  the  land  be  sold,  under  the  decree  of  the 
court,  to  enforce  the  payment  of  the  purchase  money,  the  land 
is  not  subject  to  redemption. 

§   1035.  Assignment  of  mortgage  on  redemption. — The 

general  rule  is  that  the  right  to  redeem  a  mortgage  does  not 
carry  with  it  the  right  to  an  assignment  of  the  mortgage, 

66  40  Mo.  114.  59  As  Minn.  Act,  Feb.  27,  1885. 

"Cal.  Civ.  Code,  §  726.  ^^^  Lowry  v.  Mayo,  41  Minn.  388, 

58 //a//  V.  Arnott,  80  Cal.  348,  22      43  N.  W.  78. 
Pac.  200.  "3  Head   (Tenn.)   363. 


§    1036]  REDEMPTION.  1427 

unless  the  redeeming  party  occupies  the  position  of  surety 
for  the  mortgage  debt.®^  A  judgment  creditor  with  a  lien  on 
the  land,  on  coming  in  to  redeem  is  entitled  to  an  assign- 
ment of  the  mortgage  where  it  is  necessary  to  protect  his  in- 
terest.^^  And  a  junior  mortgagee,  on  redeeming,  may  have 
an  assignment  of  the  mortgage,  although  he  does  not  occupy 
the  position  of  surety,  in  those  cases  where  a  satisfaction  of 
the  prior  mortgage  would  not  be  as  beneficial  to  the  junior 
mortgagee  as  an  assignment  of  it.^* 

§  1036.  Waiver  of  right  of  redemption. — The  right  of 
the  mortgagor  and  those  claiming  under  him  to  redeem  from 
the  mortgage  lien  by  payment  of  the  mortgage  debt  being  a 
creature  of  the  law,®®  and  an  incident  of  every  mortgage,®^ 
commensurate  with  the  right  to  foreclose,®'  it  cannot  be  aban- 
doned or  waived  by  any  stipulation  of  the  parties  made  at 
the  time  the  instrument  is  executed,®®  where  the  real  inten- 
tion of  the  parties  is  to  secure  the  payment  of  the  debt  and 
not  to  extinguish  it, — even  though  embodied  in  the  mortgage 
itself.®^    Thus  the  supreme  court  of  the  United  States,  in  the 

^2  Bigelow  v.    Cassedy,  26  N.   J.  ^^  See  Niagara  Bank  v.  Rosevelt, 

Eq.   (11  C.  E.  Gr.)  557.     See  Helt  9   Cow.    (N.   Y.)    409;   Dauchy   v. 

V.  Ellis,  31  Iowa,  86.  Bennet,  7  How.  Pr.  (N.  Y.)  375. 

Thus    in    Hclt    v.    Ellis,    supra,  ^*  Twombly  v.  Cassidy,  82  N.  Y. 

where   in   a   proceeding  to   redeem  155;  Pardee  v.  Van  Auken,  ?>  Barb- 

from  a  foreclosure  sale  of  land,  on  (N.  Y.)  534. 

account  of  alleged  irregularities  in  ^^  See  ante,  §  1031. 

the   appointment   of   appraisers,   an  ^^  See  ante,  §  1029. 

order   was  made  that   the  plaintiff  ^'  See  ante,  §  1028. 

might  redeem  within  a  certain  time,  ^^  See  post,  §   1038. 

the  court  held  that  he  was  not  en-  ^^  Baxter  v.  Willey,  9  Vt.  276,  31 

titled   to    have   brought   into   court  Am.  Dec.  623 ;  Hiles  v.  Milwaukee 

for  his  use  whether  he  redeemed  or  Power  &  Light  Co.  85  Wis.  90,  55 

not,     a     mortgage     for     purchase  N.  W.  175 ;  Peugh  v.  Davis,  96  U. 

money  held  by  the  defendants  from  S.  332,  24  L.  ed.  775. 

one  to  whom  they  had  sold   after  In    Wisconsin,    in    the    case    of 

their    purchase    at    the    foreclosure  Hiles  v.  Milwaukee  Power  &  Light 

sale,   and   who   was   not    shown   to  Co.  85  Wis.  90,  55  N.  W.  175,  the 

have  had  any  notice  of  the  alleged  court   say  that  the  right  given  by 

irregularities  in  the  sale.  the  statute  of  that  State  to  redeem 


1428 


MORTGAGE    FORECLOSURES. 


[§  1036 


case  of  Peuch  v.  DavisJ"  say  that  it  is  an  established  doctrine 
that  an  equity  of  redemption  is  inseparably  connected  with  a 
mortgage;  that  is  to  say,  so  long  as  the  instrument  is  one  of 
security  the  borrower  has,  in  a  court  of  equity,  the  right  to 
redeem  the  property  upon  payment  of  the  loan.  This  right 
cannot  be  waived  or  abandoned  by  any  stipulation  of  the 
parties  made  at  the  time,  even  if  embodied  in  the  mortgage. 
This  is  a  doctrine  from  which  a  court  of  equity  never  deviates. 
Its  maintenance  is  deemed  essential  to  the  protection  of  the 
debtor,  who  under  pressing  circumstances  will  often  submit 
to  runious  conditions,  expecting  or  hoping  to  be  able  to  repay 
the  loan  at  its  maturity  and  thus  prevent  the  condition  from 
being  enforced  and  the  property  sacrificed.  The  body  of 
American  and  English  decisions  is  to  the  same  effect.'^     Not 


mortgaged  premises  after  judgment 
■of  foreclosure  is  in  the  nature  of 
an  exemption,  and  cannot  be  waived 
'Or  shortened  by  the  agreement  of 
-ihe  mortgagor. 

70  96  U.  S.  337,  24  L.  ed.  775. 
'  "^^  Fields  V.  Helms,  82  Ala.  449; 
Parmer  v.  Parmer,  74  Ala.  285 ; 
Pritchard  v.  Elton,  38  Conn.  434; 
Workman  v.  Greening,  115  111.  477; 
Bearss  v.  Ford,  108  111.  16 ;  Willetts 
V.  Burgess,  34  111.  494;  Skemmer  v. 
Miller,  5  Litt.  (Ky.)  84;  Linnell  v. 
Lyford,  72  Me.  280;  Baxter  v. 
Child,  39  Me.  112;  Waters  v.  Ran- 
dall, M  Mass.  (6  Met.)  479;  A^m- 
gent  v.  Riley,  42  Mass.  (1  Met.) 
117,  35  Am.  Dec.  355;  Wilson  v. 
Drumrite,  21  Mo.  325 ;  Clark  v. 
Henry,  2  Cow.  (N.  Y.)  324; 
Cooper  V.  Whitney,  3  Hill  (N.  Y.) 
95 ;  Palmer  v.  Gumrey,  7  Wend. 
(N.  Y.)  248;  Hauser  v.  Lamont,  55 
Pa.  311,  93  Am.  Dec.  755;  JVliarf 
V.  Howell,  5  Binn.  (Pa.)  499;  Hcis- 
ter  V.  Fortner,  2  Binn.  (Pa.)  43,  4 
Am.  Dec.  417 ;  Rankin  v.  Morti- 
mer e,  7  Watts  (Pa.)  372;  J  agues  v. 


Weeks,  7  WaUs  (Pa.)  277;  Heist er 
V.  Madcria,  7  Watts  &  S.  (Pa.) 
384;  Wheeland  v.  Swartz,  1  Yeates 
(Pa.)  584;  Cherry  v.  Bowen,  4 
Sneed  (Tenn.)  415;  Burrow  v. 
Henson,  2  Sneed  (Tenn.)  658; 
Bennett  v.  Holt,  2  Yerg.  (Tenn.)  6, 
24  Am.  Dec.  455 ;  Chapman  v.  Tur- 
ner, 1  Call  (Va.)  281,  1  Am.  Dec. 
514;  Pennington  v.  Hanby,  4  Munf. 
(Va.)  140;  King  v.  Newman,  2 
Munf.  (Va.)  40;  Thompson  v. 
Davenport,  1  Wash.  (Va.)  125; 
Davis  V.  Demming,  12  W.  Va.  246; 
Plato  V.  Roe,  14  Wis.  453;  Knowl- 
ton  V.  Walker,  13  Wis.  264;  Orton 
V.  Knob,  3  Wis.  576;  Jackson  v. 
Lawrence,  117  U.  S.  679,  29  L.  ed. 
1024 ;  Peugh  v.  Davis,  96  U.  S.  337, 
24  L.  ed.  775;  Hughes  v.  Ed- 
wards, 22  U.  S.  (9  Wheat.)  489,  6 
L.  ed.  142;  Cashorne  v.  Scarf e,  1 
Atk.  603 ;  Goodman  v.  Grieranc,  2 
Ball  &  B.  278;  Jason  v.  Eyres,  2 
Ch.  Cas.  3Z;  East  India  Co.  v.  At- 
kyns,  1  C.  B.  349;  Floyer  v.  Lav- 
ington,  1  Pr.  Wms.  268 ;  Newcomb 
V.  Bonham,  2  Vent.  364;  Howard  v. 


§     1036]  REDEMPTION.  1429 

only  is  this  doctrine  in  accord  with  the  weight  of  American 
and  English  decisions,  but  it  is  thought  that  no  case  can  be 
found  in  which  it  has  been  determnied  that  the  mortgagee 
can  by  force  of  any  agreement,  made  at  the  time  of  creating 
the  mortgage,  entitle  himself  at  his  own  election,  to  hold  the 
estate  free  from  condition,  and  cutting  off  the  right  in  equity 
of  the  mortgagor  to  redeem/^ 

A  court  of  equity  will  set  aside  any  agreement  by  a  mort- 
gagor contemporaneous  with  the  execution  of  the  mortgages 
by  which  he  waives,  unduly  fetters,  or  agrees  not  to  exercise 
his  equity  of  redemption  in  event  of  default  of  the  payment 
of  the  debt;  but  a  subsequent  agreement  to  convey  for  a  fair 
consideration,  made  in  order  to  avoid  the  expense  of  foreclo- 
sure, and  reserving  to  the  mortgagor  the  same  right  to  redeem 
as  if  the  property  was  sold  under  foreclosure,  and  showing 
no  fraud  or  undue  advantage,  will  be  sustained.'^  And  the 
court  of  chancery  of  New  Jersey,  in  the  case  of  Heald  v. 
Jardin,'*  say  that  a  mere  statement  by  counsel  for  the  owner 
of  the  equity  of  redemption  in  mortgaged  lands  made  at  a 
casual  meeting  on  the  street,  that  he  does  not  think  the  owner 
will  exercise  his  right  to  redeem,  does  not  amount  to  a  waiver 
of  such  option.  In  Tennessee,  the  right  of  redemption  does 
not  extend  to  a  sale  made  under  a  power  in  a  mortgage,  where- 
in the  right  of  redemption  is  w^aived.'^^ 

It  is  said  by  the  supreme  court  of  Alabama,  in  the  case  of 
Commercial  Real  Estate  and  Building  Loan  Association  v. 
Parker,'^  that  in  those  cases  where  the  mortgagor  sells  his 
equity  of  redemption,  or  assigns  his  interest  in  the  mort- 
gaged premises  to  another  before  sale  thereof,  this  will  con- 
stitute an  abandonment  of  the  statutory  right  of  redemption, 
even  though  his  assignee  cannot  exercise  the  right. 

Harris,  1  Vern.  191 ;  Seton  v.  Slade,  '^  21  Atl.  586,   1890. 

7  Ves.  273,  6  Rev.  124.  '5  Hamilton    v.    Fowler,   99   Fed 

72  See     Waters     v.     Randall,  47  18,  40  C.  C.  A.  47. 

Mass.  (6.  Met.)  479.  76  84  Ala.  298,  4  So.  268. 

i^Stoiitz  V.   Rouse,  84  Ala.   309, 
4  So.  170. 


1430  MORTGAGE    FORECLOSURES.  [§    1037 

§  1037.  Surrender  of  right  of  redemption. — The  mort- 
gagor may  surrender  his  right  in  the  equity  of  redemption, 
thus  rendering  the  mortgage  absohite,''  but  this  equity  of 
redemption  being  a  right  in  real  estate,  it  cannot  be  released 
or  surrendered  except  by  an  instrument  in  writing,'*  or  such 
facts  must  be  shown  as  will  estop  him  from  asserting  any  in- 
terest in  the  premises,''  a  mere  parol  agreement  being  in- 
sufficient under  the  statute  of  frauds  to  convert  a  mortgage 
into  an  absolute  deed.*°  But  a  release  or  surrender,  to  be 
valid,  must  be  founded  upon  an  adequate  consideration.*^ 
Any  marked  undervaluation  of  the  property  in  the  price  paid 
will  vitiate  the  proceedings.*^  Thus  the  supreme  court  of  the 
United  States,  in  the  case  of  Russell  v.  Southard,*^  say  that 
the  surrender  of  the  right  to  redeem,  by  a  mortgagor  in  pos- 
session, will  be  closely  scrutinized  by  a  court  of  equity;  and 
in  those  cases  where  it  is  obtained  by  the  mortgagee  denying 
the  right  to  redeem,  for  no  consideration,  or  as  a  condition 
to  the  correction  of  a  mistake  which  in  equity  he  was  bound 
to  correct,  the  surrender  will  be  set  aside  by  the  court. 

§  1038.  Stipulations     or     agreements     barring. — The 

equity  of  redemption  is  a  right  in  the  land  which  is  insepar- 
ably annexed  to  the  mortgage,  and  cannot  be  dis-annexed 
therefrom,  even  by  the  express  stipulation  of  the  parties.** 

77  Youle  V.  Richards,  1  N.  J.  Eq.  392;  Brick  v.  Brick,  98  U.  S.  514, 

<1    Saxt.)    534,   23   Am.   Dec.   722.  25  L.  ed.  256;  Peugh  v.  Davis,  96 

See  also  Luesenhop  v.  Einsfeld,  93  U.  S.  332,  24  L.  ed.  775 ;  Morgan  v. 

App.  Div.  68,  87  N.  Y.  Supp.  268.  Shinn,  82  U.  S.  (15  Wall.)   105,  21 

"J^  Clark  V.  Condit,   18  N.  J.   Eq.  U  td.  A9;  Scholl  v.  Hopper,  UAKy. 

{3  C.  E.  Gt.)  358;  Peugh  V.  Davis,  83,    119    S.    W.    770;    Ferguson    v. 

96  U.  S.  332,  24  L.  ed.  775;  Sebree  Boyd,  79  N.  E.  549  (Ind.) 

V.    Thompson,    31    Ky.    Law    Rep.  ^^  Peugh  v.  Davis,  96  U.  S.  332, 

1146,  104  S.  W.  781.  24  L.  ed.  775. 

^9  Peugh  V.  Davis,  96  U.  S.  332,  8353  u.  S.  (12  How.)   139,  13  L. 

24    L.    ed.    775.     See   Schnitter   v.  ed.  927. 

Law,  189  Fed.  893.  **  Grover  v.  Hazvthorne,  121  Pac. 

^0  Clark  V.   Condit,  18  N.  J.   Eq.  808   (Or.);  Stephens  v.  Sherrod,  6 

(3  C.  E.  Green)  358.  Tex.     294,     55     Am.     Dec.     776; 

^'^  Brownlee  v.   Martin,  21   S.   C.  Lucketts  v.  Townsend,  3  Tex.  119, 


§  1038] 


REDEMPTION. 


1431 


This  is  a  right  that  is  not  subject  to  be  controlled  by  the 
agreement  of  the  parties,®^  even  though  contained  in  the 
mortgage  itself, ^^  for,  as  Lord  Eldon  said:     "You  shall  not, 


49  Am.  Dec.  723.  See  2  Story  Eq. 
Jan.  (13th  ed.)  §  1019.  See  Falk- 
ner  v.  Cody,  45  Misc.  64,  91  N.  Y. 
Supp.  633.  See  also  Barlow  v. 
Cooper,  109  III.  App.  375. 

^^  Fields  V.  Helms,  82  Ala.  449, 
3  So.  106;  Parmer  v.  Parmer,  74 
Ala.  285 ;  Lounsbury  v.  Norton,  59 
Conn.  170;  Bearss  v.  Ford,  108  111. 
16;  Tennery  v.  Nicholson,  87  111. 
464;  Willets  v.  Burgess,  34  111.  494; 
Preschbaker  v.  Feaman,  32  III.  475 ; 
Wynkoop  V.  Cowing,  21  111.  570; 
Linnell  v.  Lyford,  72  Me.  280;  Bax- 
ter V.  C/n7J,  39  Me.  110;  Bailey  v. 
5ai7o',  71  Mass.  (5  Gray.)  510; 
Youle  V.  Richards,  1  N.  J.  Eq.  (1 
Saxt.)  534,  23  Am.  Dec.  722; 
Henry  v.  Davis,  7  John.  Ch.  (N. 
Y.)  40,  affirmed  sub  nom ;  Clark 
V.  Henry,  2  Cow.  (N.  Y.)  324; 
liolridge  v.  Gillespie,  2  John.  Ch. 
(N.  Y.)  30;  Gj7/u  v.  Martin,  2 
Dev.  (N.  C.)  Eq.  470,  25  Am. 
Dec.  729;  Cherry  v.  Bowen,  4 
Sneed  (Tenn.)  415:  Petigh  v. 
Davis,  96  U.  S.  332,  24  L.  ed. 
775 ;  Fry  v.  Porter,  1  Chan.  Cas. 
141;  East  India  Co.  v.  Atkins, 
Corny.  347,  349;  James  v.  Oades, 
2  Vern.  402;  Seton  v.  i'/ad^,  7 
Ves.  273,  6  Rev.  124;  Johnson  v. 
Prosperity  Loan  &  Building  Ass'c. 
94  111.  App.  260.  See  Conover 
V.  Palmer,  60  Misc.  241.  Ill 
N.  Y.  Supp.  1074;  Shank  v. 
Groff,  43  W.  Va.  337,  27  S. 
E.  340;  Griff  en  v.  Cooper,  73  N.  J. 
Eq.  465,   68  Atl.    1095. 

In  the  case  of  Tennery  v.  Nichol- 
son. 87  111.  464,  a  debtor  conveyed 
land  by  a  deed  absolute  on  its  face. 


taking  a  written  agreement  for  a 
reconveyance  on  payment  of  the 
debt.  Afterwards  he  gave  a  new 
note  for  $1,071,  taking  a  similar 
agreement,  wherein  time  was  made 
of  the  essence  of  the  contract,  and 
which  provided  that  in  case  of  fail- 
ure to  pay  on  the  day  named,  "the 
intervention  of  equity  is  forever 
barred."  Failing  to  pay,  and  be- 
lieving his  right  of  redemption 
gone,  he  promised  to  pay  $2,000 
at  ten  per  cent.,  and  took  another 
agreement  for  a  deed.  The  court 
held  the  equity  of  redemption  could 
only  be  cut  off  by  a  foreclosure, 
and  that  the  last  promise  was,  for 
want  of  consideration,  not  binding 
on  him. 

The  court  of  chancery  of  New 
Jersey,  in  the  case  of  Youle  v.  Rich- 
ards, 1  N.  J.  Eq.  (1  Saxt.)  534, 
23  Am.  Dec.  722,  say :  "If  the  con- 
veyance is  a  mortgage  in  the  begin- 
ning the  right  of  redemption  is  an 
independent  incident,  and  cannot  be 
restrained  or  clogged  by  agree- 
ments." Henry  v.  Davis,  7  John 
Ch.  (N.  Y.)  40,  42.  Such  an  agree- 
ment, says  Fontlanque,  would  be 
contrary  to  natural  justice  in  the 
creation  of  it,  and  prove  a  general 
mischief,  because  every  lender 
would,  by  this  method,  make  him- 
self chancellor  in  his  own  case,  and 
prevent  the  judgment  of  the  court; 
2  Fonbl.  259.  See.  also.  Fry  v. 
Porter,  1  Ch.  Cas.  141 ;  James  v. 
Oades,  2  Vern.  402 ;  Seton  v.  Slade. 
7  Ves.  273.  6  Rev.  124 ;  and  1  Pow. 
on   Mort.   116.  et  seq. 

^^  Clark    V.    Henry,    2    Cow.    (N. 


1432  MORTGAGE    FORECLOSURES.  [§     103S 

by  special  terms,  alter  what  this  court  say  are,  the  special 
terms  of  that  contract."  ®'  Thus  the  courts  have  held  void 
agreements  and  stipulations  tending  to  alter  the  original  nature 
of  the  mortgage,  in  any  subsequent  event,  so  as  to  cut  off 
the  equity  of  redemption,®'  as  v^ell  as  agreements  or  stipula- 
tions at  the  time  of  the  contract,  that  the  purchaser  should, 
in  default  of  the  debtor,  become  the  absolute  owner,  if  the 
subject  was  once  redeemable.*^  In  an  old  case  ^°  it  is  said 
that  if  a  man  makes  a  mortgage  and  covenants  not  to  bring 
a  bill  to  redeem,  and  even  goes  so  far,  as  is  Stisted's  Case, 
as  to  take  an  oath  that  he  will  not  redeem,  yet  he  shall  redeem. 
The  doctrine  of  common  law,  as  approved  and  modified 
by  the  principles  of  the  civil  law,  was  that  an  equity  of  re- 
demption could  not  be  cut  off  except  by  a  foreclosure,  and 
that  is  the  general  rule  in  this  country  to-day,  in  the  absence 
of  any  statute  controlling.  Thus,  it  has  recently  been  held 
by  the  United  States  circuit  court  of  appeals,  sitting  in  the 
eighth  circuit,  that  an  election  by  the  grantee  in  an  absolute 
deed  constituting  a  mortgage  in  equity,  to  avail  himself  of  an 

\.)   324,  affirming  sub  nom  Henry  right    of    possession    to    the    mort- 

V.  Davis,  7  John  Ch.   (N.  Y.)  405;  gagee.     Kirkeudall  v.    Weathcrley, 

Grover  v.  Hawthorne,  121  Pac.  808  77   Neb.  421,  9  L.R.A.(N.S.)    515, 

(Or.)  ;   Boyer  v.   Paine,  60  Wash.  109  N.  W.  757. 

56,  110  Pac.  682  (Wash.)  ^"^  Seton  v.  Slade,  7  Ves.  273,  6 

A  subsequent  agreement  by  which  Rev.    124.     See   Toomes  v.   Conset, 

the    mortgagor    is    to    forfeit    the  3  Ark.  261 ;  Floyer  v.  Livingston,  1 

land   absolutely  if   the  debt  is   not  Pr.  Wm.  268. 

paid  on  the  day  stated,  may  be  void  ^8  Lounsbiiry  v.  Norton,  59  Conn, 

as  vjtW.     Tennery  v.  Nicholson,  87  170,  20  Atl.  153 ;  Youle  v.  Richards, 

111.  464;   Batty  v.  Snook,  5   Mich.  1  N.  J.  Eq.   (1  Saxt.)  534,  23  Am. 

231 ;   Holden   Land   &  Live   Stock  Dec.  722. 

Co.   V.   Interstate   Trading   Co.    123  ^^  Henry  v.  Clark,  7  John  Ch.  (N. 

Pac.  733  (Kan.)     See  also  Wells  v.  Y.)    40,    aff'd    sub.    nom.    Clark    v. 

Geyer,  12  N.  D.  316,  96  N.  W.  289.  Henry,  2  Cow.  (N.  Y.)  324;  Stone 

Mortgagor's  equity  of  redemption  v.  Barnds,  1  Ohio  St.  107;  Gillis  v. 

cannot   be    extinguished   by   adver-  Martin,  2  Dev.  (N.  C.)  Eq.  470,  25 

sary  proceedings  other  than  judicial  Am.  Dec.  729. 

process  of  foreclosure,  even  in  the  ^^  East  India    Co.    v.    Atkyns,   1 

presence    of    a   stipulation    for    the  Comy.  347,  349. 
conveyance   of    the   legal   title    and 


§     1039]  REDEMPTION.  1433 

option  therein  to  retain  the  property  in  satisfaction  of  the  loan, 
will  not  operate  to  bar  the  equity  of  redemption,  but  such 
equity  can  be  barred  only  by  a  proper  foreclosure.^^ 

It  is  said,  in  Cottingham  v.  Springer,^^  the  common  law 
rule,  that  an  equity  of  redemption  can  be  cut  off  only  by  a 
foreclosure  in  equity,  does  not  prevail  in  Illinois;  and  that 
by  a  sale  under  an  execution,  on  a  judgment  for  a  debt  se- 
cured by  a  mortgage,  and  by  a  sheriff's  deed  to  the  mort- 
gagee, he  acquires  the  equity  of  redemption,  which,  united 
with  his  estate  under  the  mortgage,  gives  him  the  absolute 
title.  And  in  Cook  v.  McFarland,^^  the  court  say  that  par- 
ties to  an  action  of  foreclosure  may  stipulate  that  sales  upon 
a  decree  therein  shall  be  absolute  and  without  redemption; 
and  a  decree  and  sale  based  thereon  is  in  effect  an  adjudica- 
tion binding  upon  the  parties  as  well  as  the  subsequent  in- 
cumbrances. 

§  1039.  Right  of  an  estate  in  lands. — The  general  rule 
is  that  the  equity  of  redemption  is  a  real  and  beneficial  estate 
in  lands,  which  may  be  sold  and  conveyed  by  the  mortgagor 
in  any  of  the  ordinary  modes  of  assurance,  subject  only 
to  the  lien  of  the  mortgage.^*  On  conveyance,  the  assignee 
takes  the  land  subject  to  the  mortgage  and  the  covenants 
thereon,  which  may  be  enforced  against  the  land  in  the  same 
manner  and  to  the  same  extent  as  if  the  assignment  had  not 
been  made.^^ 

The  equity  of  redemption  being  a  right  to  real  estate,  it 
cannot  be  released  or  surrendered,  except  by  an  instrument 
in  writing,®^  or  such  facts  are  shown  as  will  estop  the  party 
from  asserting  an  interest  in  the  premises.^'    Yet  the  supreme 

91  Watts  V.  Kellar,  56  Fed.  1.  96  ciark  v.   Coudit,   18  N.  J.  Eq. 

92  88  111.  90.  (3  C.  E.  Gr.)  358;  Peugh  v.  Davis, 
98  78  Iowa,  528,  43  N.  W.  519.            96  U.  S.  332,  24  L.  ed.  775. 

9^  McMillan   v.    Richards,   9   Cal.  ^^  Peugh  v.  Davis,  96  U.  S.  332, 

365,  70  Am.  Dec.  655.  24  L.  ed.  775. 

95  Schooley   v.    Romain,    100   Ad. 
87. 


1434  MORTGAGE    FORECLOSURES.  [§    1040 

court  of  Ohio  have  held,  in  the  case  of  Shaw  v.  Walbridge,^* 
that  in  those  cases  where  a  deed  absolute  on  its  face  is 
claimed  by  the  grantor  to  be  a  mortgage,  it  is  competent  to 
show  that,  although  originally  a  mortgage,  the  equity  of  re- 
demption has  been  released  by  parol. 

§  1040.  Same — Alabama  doctrine. — In  some  of  the 
states  the  general  rule,  as  laid  down  in  the  last  section,  does 
not  prevail.  Thus,  it  is  held  in  Alabama  that  the  right  of 
redemption  given  by  the  code  in  that  state  ^^  is  distinct  and 
different  from  the  common  law  equity  of  redemption;  and  it 
is  personal  to  the  debtor,  that  it  is  not  property,  and  therefore 
is  not  capable  of  passing  to  an  assignee  of  the  equity  of  re- 
demption.^ 

§  1041.  Same — A  rule  of  property. — The  general  rule  is 
that  a  state  statute,  with  rules  of  practice  of  state  courts 
framed  for  enforcement  of  it,  declaring  a  right  of  redemption 
of  mortgaged  property  on  foreclosure,  is  a  rule  of  property, 
and  is  obligatory  on  federal  courts  deciding  on  claims  and 
interests  in  real  property  within  the  state.^  It  has  been  repeat- 
edly held  that  the  statutory  right  of  redemption  after  a  sale 
under  a  decree  of  foreclosure  is  a  rule  of  property  in  the  state 
where  in  force,  and  must  be  observed  in  the  federal  courts 
equally  with  those  of  the  state.^    But  while  the  local  law  giv- 

98  33  Ohio  St.  1.  ^Connecticut  Mut.  L.  Ins.  Co.  v 

99  Ala.  Code,  1886,  §  1879,  et  seq.       Cushman,   108  U.  S.  51,  27  L.   ed. 
^Powers  V.  Andrews,  84  Ala.  289,      648;  Swift  v.  Smith,  102  U.  S.  442, 

4  So.  263;  Aiken  v.  Bridgeford,  84  27  L.  ed.   193;  Orvis  v.  Powell,  98 

Ala.   295,   4   So.   266;    Commercial  U.  S.   176,  25  L.  ed.  238;  Brine  v. 

Real    Estate     &    Bldg.     Asso.     v.  Hartford   Fire   Ins.    Co.   96   U.    S. 

Parker,  84  Ala.  298,  4  So.  268.  627.    24    L.    ed.    858;    Metropolitan 

The  case  of  Bailey  v.  Timberlake,  Nat.  Bank  of  N.  Y.  v.  Connecticut 

74  Ala.  221,  is  overruled.  Mut   L.    Ins.    Co.   24   L.    ed.    1011. 

^ Berne  v.  Hartford  Fire  Ins.  Co.  (Not  in  official  edition.) 
96  U.  S.  627,  24  L.  ed.  858.     See, 
also,  authorities  two  foot  notes  fol- 
lowing. 


§    1042]  REDEMPTION.  1435 

ing  the  right  of  redemption  lirst  to  the  mortgagor,  then  to 
judgment  creditors,  is  a  rule  of  property  obhgatory  upon  the 
federal  court,  the  latter  may  prescribe  the  mode  in  which  re- 
demption from  sales  under  its  own  decrees  may  be  effective.* 

§  1042.  Restriction  of  right  to  redeem — To  particular 
person. — The  right  to  have  a  mortgage  lien  discharged 
from  the  premises  by  payment  of  the  debt  and  to  redeem 
the  same,  being  inseparably  connected  with  every  mortgage,^ 
any  agreement  or  stipulation  appearing  as  a  restriction  of 
the  right  of  redemption  to  the  mortgagor  personally  is  incon- 
sistent with  the  nature  of  a  mortgage,  and  therefore  void.^ 
As  it  has  been  said  that  whenever  it  clearly  appears  to  have 
been  the  intention  of  the  parties  that  the  land  conveyed  shall 
be  subject  to  redemption,  the  right  of  redemption  cannot  be 
limited  in  time  or  to  a  particular  person  or  persons.'  This  is 
upon  the  ground  that  if  the  conveyance  is  a  mortgage  in  the 
beginning,  the  right  of  redemption  is  an  independent  incident 
and  cannot  be  restrained  or  clogged  by  any  agreements,^  be- 
cause such  a  restriction  would  be  contrary  to  natural  justice 
and  might  work  oppression  to  the  mortgagor.® 

It  is  thought,  however,  some  restrictions  upon  the  right 
of  redemption  are  not  open  to  the  objection  above  pointed 
out,  and  are  therefore  binding  upon  the  mortgagor  and  all 
those  claiming  under  him.  Thus  in  the  case  of  Bonham  v. 
Newcomb,^"  the  mortgagor  limited  the  right  of  redemption 
to  his  own  life  for  the  purpose  of  benefiting,  by  way  of  set- 

*  Connecticut  Mut.  L.  Ins.  Co.  v.  ^  Youie  v.  Richards,  1   N.  J.  Eq. 

Cushman,   108  U.   S.  51,  27  L.  ed.  (1    Saxt.)    534,  23   Am.   Dec.   722; 

648.  Henry   v.   Davis,   7  John.    Ch.    (N. 

5  See  ante,  §  1029.  Y.)   40,  42. 

8  Johnson  v.  Gray,  16  Serg.  &  R.  ^  2  Fonbl.  259.    See  Fry  v.  Porter, 

(Pa.)     361,     16     Am.     Dec.     577;  1  Ch.  Cas.  141;  James  v.  Oades,  2 

Spurgeon   v.   Collier,   1   Eden,   551;  Vern.  402;  Seton  v.  Slade,  7  Ves. 

Howard    v.    Harris,    1    Vern.    2Z ;  273,  6  Rev.  124. 

Newcomh  v.  Bonham,  1  Vern.  8.  ^"2  Vent.  364,  1  Vern.  8. 

7  Yoxile  V.  Richards,  1  N.  J.  Eq. 
(1  Saxt.)  534,  23  Am.  Dec.  722. 


1436  MORTGAGE    FORECLOSURES.  [§    1043 

tlement,  the  mortgagee  who  was  some  near  relative,  reserv- 
ing to  himself  the  right  to  redeem  at  any  time  during  his 
own  life,  and  the  arrangement  was  upheld.  And  in  the  case 
of  Stover  v.  Bounds,"  where  the  owner  of  a  certificate  of 
entry  of  land  from  the  United  States  assigned  such  certificate 
as  security  for  a  debt,  with  a  condition  of  defeasance,  it  was 
held  that  the  right  of  the  original  assignor  to  redeem  was 
not  affected  by  a  provision  in  the  condition  of  defeasance 
limiting  his  time  to  redeem  to  a  fixed  period  after  the  trans- 
action, such  limitation  not  affecting  the  vested  right  of  re- 
demption. 

§  1043.  Same — To  particular  time. — The  restricting  of 
the  time  of  redemption  to  a  period  other  than  that  named  in 
the  statute  will  not,  as  a  general  rule,  bar  the  right  to  re- 
deem.^^  Thus  it  is  said  that  the  restriction  of  the  right  of 
redemption  to  one  year  in  an  absolute  deed,  with  an  agree- 
ment that  it  shall  be  void  if  a  certain  debt  is  not  paid  within 
a  year,  is  null.^^  But  the  Supreme  Court  of  Wisconsin,  in  the 
case  of  Hiles  v.  Milwaukee  Power  and  Light  Company  ^* 
say  that  if  a  stipulation  by  an  attorney  acting  under  a  war- 
rant of  attorney  in  a  mortgage,  shortening  the  time  for  re- 
demption given  by  the  Wisconsin  statute  after  judgment  of 
foreclosure  to  ten  days,  is  a  valid  consent  on  the  part  of  the 

11  1  Ohio  St.  107.  of    this    order,    and    notice    of    the 

'^^  Stover  V.  Bounds,   1   Ohio   St.  same  to  him,  that  he,  the  said  plain - 

107.  tiff,    be    for   ever   barred    from    all 

13  Youle  V.  Richards,  1  N.  J.  Eq.  claim  to  and  equity  of  redemption 

(1    Saxt.)    534,  22  Am.   Dec.   722;  in  the  said  'Vosburg  third.'"     The 

Winton's  Appeal,  87  Pa.  St.  17.  court  held,  that  this  action  was  er- 

In  Winton's  appeal,  supra,  a  de-  roneous,   as   it   was   an   attempt   to 

cree    rendered    in    Pennsylvania    in  bar    a    mortgagor's    equity    of    re- 

1875,    from    which    an    appeal    was  demption,  which  in  this   State  can 

taken   in   1878,  an  amendment  was  only   be    extinguished    by    his    own 

made  five  days  afterwards,  as  fol-  agreement,    by    some   act    done    by 

lows :     "And    upon    the    plaintiff's  himself   that   estops    him,    or   by   a 

failure  to  make  said  payment  for  a  judicial  sale, 

period  of  thirty  days  after  the  filing  i*  85  Wis.  90,  55  N.  W.  175. 


§     1044]  REDEMPTION.  1437 

mortgagor  to  a  sale  at  that  time,  such  consent  being  suffi- 
cient to  warrant  a  sale  under  the  statutes  of  that  state  ^^  post- 
poning sales  of  mortgaged  premises  of  one  year  after  judg- 
ment of  foreclosure,  both  providing  that  the  parties  may, 
by  stipulation  in  writing  filed  with  the  clerk,  consent  to  an 
earlier  sale,  where  all  the  parties  to  the  action — especially 
subsequent  mortgagees  or  incumbrancers — do  not  file  such  a 
consent. 

§  1044.  Same — By  contract  after  breach  of  condition. — 

We  have  already  seen,^^  that  the  equitable  right  of  redemp- 
tion is  a  creature  of  the  law,  and  not  of  contract,"  and  that  the 
parties  are  not  permitted  by  special  agreement  to  dis-annex 
from  the  mortgage,  at  the  time  of  its  execution,  that  which 
the  law  has  declared  shall  be  annexed  to  it.^*  The  reason 
of  this  rule  is  to  prevent  undue  oppression  of  debtors  by 
creditors.  A  like  rule  has  been  applied,  for  similar  reasons, 
to  the  statutory  right  of  redemption. ^^  This  rule,  however, 
does  not  apply  to  any  fair  and  bona  fide  purchase  of  the  right 
of  redemption,  which  is  entered  into  subsequently  to  the  exe- 
cution of  the  mortgage;^"  but  courts  of  equity  will  scan  such 
transactions  with  watchfulness,  and  will  declare  them  void 
where  procured  by  fraud,  either  actual  or  constructive,  in- 
cluding any  unconscionable  advantage,  or  undue  influence,  or 
where  made  on  a  consideration  which  is  grossly  inadequate.''^ 
This  is  on  a  parity  of  reasoning  with  the  doctrine  that  where 
an  owner  of  an  equity  of  redemption  agreeing  with  the  mort- 
gagees not  to  ask  an  adjournment  to  procure  an  order  for  a 
sale  of  the  lands  in  parcels,  in  consideration  of  the  mortgagee's 
bidding  in  the  land  and  giving  him  the  right  to  redeem  within 

"Wis.  Rev.  Stat.  3162.  ^^^  Stouts  v.  Rouse,  84  Ala.  309,  4 

16  See  ante,  §  1031.  So.  170.     See  Heald  v.  Jardine,  21 

"Stoutz  V.  Rouse,  84  Ala.  309,      Atl.  586. 

4  So.  170.  21  Stouts  V.  Rouse,  84  Ala.  309,  4 

18  See  ante,  §§  1029,  1038.  So.    170;    McKinstry   v.    Conly,    12 

^^Stoutz  V.   Rouse,  84  Ala.  309,       Ala.    678;    Hitchcock    v.    Bank.    7 

4  So.  170.  Ala.  386,  443. 


1438  MORTGAGE    FORECLOSURES.  [§    1044 

a  stated  time,  stands  in  the  same  relation  to  the  mortgagees 
after  the  sale,  that  he  did  before,  and  is  entitled  to  redeem 
within  the  time  limited.^'' 

There  is  much  reason  for  the  rule  that,  in  the  absence  of 
fraud,  undue  influence  or  unconscionable  advantage,  the  mort- 
gagor may,  at  any  time  after  the  execution  of  the  mortgage, 
by  a  new  and  separate  contract,  sell  or  release  his  equity  of 
redemption  to  the  mortgagee  for  a  consideration  that  is  not 
grossly  inadequate. ^^  In  all  such  cases,  however,  a  court  of 
equity  will  examine  strictly  into  the  facts  in  order  to  ascer- 
tain that  the  transaction  is  a  perfectly  fair  and  independent 
proceeding,  and  entirely  unconnected  with  the  original  contract 
of  mortgage.^* 

It  is  thought  that  the  mortgagor  may,  for  a  valuable  con- 
sideration, reduce  his  equity  of  redemption  to  a  statutory 
right  of  redemption.  The  mortgagee  certainly  has  a  right 
to  go  into  a  court  of  chancery  and  foreclose  his  mortgage  by 
due  process  of  law.  Where  he  does  so,  the  result  is  to  cut 
off  the  mortgagor's  equity  of  redemption,  and  convert  it  into 
a  statutory  right  of  redemption;  thus  vesting  the  legal  title 
of  the  estate  absolutely  in  the  mortgagee,  subject  to  the  right 
of  the  mortgagor,  and  certain  other  persons  in  privity  with 
him,  to  redeem  the  premises  on  terms  specified  in  the  statute, 
and  within  the  time  fixed  from  the  date  of  the  foreclosure. 
This  is  true  where  the  mortgagee  himself  buys  at  the  fore- 

^^Heald  v.  Jardine,  21  Atl.    (N.  Mills  v.  Mills,  26  Cor^n.  212,;  Brown 

J.  Ch.)  586.  V.  Gafney,  28  III.   149;  Baugher  v. 

23  McKinstry    v.    Conly,    12    Ala.  Merriman,  32  Md.  185 ;  Holridge  v. 

678;    Austin    v.    Bradley,    2    Dey  Gillespie,  2  John.  Ch.   (N.  Y.)  30; 

(Conn.)  466;  Wynkoop  v.  Cowing,  Hyndman   v.   Hyndman,    19   Vt.   9. 

21  111.  570;  Hicks  v.  Hicks,  5  Gill.  46  Am.  Dec.  171;   Villa  v.  Rodrig- 

&  J.  (Md.)  75;  Trull  v.  Skinner,  34  nes,  79  U.  S.   (12  Wall.)  323;  sub 

Mass.    (17   Pick.)    213;   Renisen  v.  nom.   Alexander   v.    Rodriguez,   20 

Hay,   2    Edw.    Ch.     (N.    Y.)    535;  L.  ed.  406;  Russell  v.  Southard,  53 

Russell  V.  Southard,  53  U.   S.    (12  U.  S.  (12  How.)  139,  154,  13  L.  ed. 

How.)  139,  13  L.  ed.  927.  927,  933;    Webb  v.   Rorke,  2   Sch. 

^'^  Locke  V.  Palmer,  26  Ala.  312;  &  L.  661,  673. 


§    1045]  REDEMPTION.  1439 

closure  sale,  or  even  under  a  power  in  the  mortgage. ^^  There 
is  no  apparent  reason  why  the  mortgagor  and  the  mortgagee 
may  not  provide  by  a  fair  contract  without  resort  to  the  courts 
for  doing  precisely  what  the  law  would  do  for  them.  Surely 
the  law  will  not  prohibit  the  parties  from  contracting  for  a 
valuable  consideration,  to  do  what  it  will  compel  by  legal 
process.  It  is  thought  that  unless  the  relation  of  the  parties 
is  used  to  acquire  some  undue  influence,  by  which  the  mort- 
gagee unfairly  oppresses  the  mortgagor,  or  the  sale  is  based  on 
a  grossly  inadequate  consideration,  such  a  transaction  will  be 
sustained,  for  the  reason  that  it  is  not  an  unfair  sale  of  the 
equity  of  redemption,  nor  an  unreasonable  fettering  of  it 
within  the  meaning  of  the  law.  The  effect  of  such  a  trans- 
action is  merely  to  convert  it  by  contract  into  the  statutory 
right  of  redemption,  in  order  to  save  the  expenses  of  fore- 
closure incident  to  a  suit.  It  is  the  spirit  of  the  law  to  favor 
the  compromise  of  law  suits,  whether  pending  or  threatened, 
upon  the  soundest  principles  of  public  policy.  Upon  these 
principles  it  is  thought  that  such  a  transaction  in  relation  to  a 
defaulted  mortgage  is  not  only  a  prudent  business  arrange- 
ment, but  one  that  will  be  looked  upon  favorably  and  upheld 
by  courts  of  equity .^^ 

§  1045.  Evasion  of  equitable  rule. — Any  agreement  or 
arrangement  which  is  designed  to  enable  the  mortgagee  to 
evade  the  equitable  rule  and  wrest  the  property  from  the  mort- 
gagor is  invalid  and  will  not  bar  the  right  to  redeem  in  the 
mortgagor,  his  heirs  or  assigns.^'  But  it  has  been  held  that 
a  stipulation  in  the  mortgage  limiting  the  time  within  which 
redemption  is  to  be  made  does  not  affect  the  right  of  redemp- 

^^Stoutz  V.   Rouse,  84  Ala.  309,  ^^  Stoutz  v.  Rouse,  84  Ala.  309,  4 

4  So.   170;  Mewburn    v.    Bass,    82  So.  170. 

Ala.  622,  2  So.  320 ;  Comer  v.  Shee-  27  Sturgeon    v.    Collier,    1    Eden, 

han,  74  Ala.  452;  Cooper  v.  Horns-  55;  Newcomh  v.  Bonham,  1  Freem. 

hy,    71    Ala.    62,    Ala.    Code    1886,  Ch.  67,  \  Ytrn.  9,;  Howard  v.  Har- 

§  1879,  et  seq.  ris,  1  Vern.  33. 


1440  MORTGAGE    FORECLOSURES.  [§    1046 

tion  itself,  and  is  therefore  valid  ;^^  also  that  stipulations  lim- 
iting the  time  of  redemption  to  the  lifetime  of  the  mortgage 
as  a  means  of  benefiting  the  mortgagee,  by  way  of  settlement, 
will  be  npheld.^^ 

§  1046.  Payment  of  additional  sum  and  taking  title. — 

An  arrangement  providing  that  in  case  of  breach  of  the  con- 
dition in  the  mortgage,  the  mortgagee  shall  pay  a  stipulated 
sum  and  take  the  title,  is  open  to  the  objection  that  the  equity 
of  redemption  is  improperly  cut  off  without  due  foreclosure, 
and  for  that  reason  will  be  set  aside  by  a  court '°  of  equity. 

§  1047.  Sale  of  equity  of  redemption  to  mortgagee. — 

While  equity  will  not  recognize  an  agreement  entered  into  at 
the  time  of  executing  the  mortgage,  whether  contained  in 
the  same  or  a  separate  contemporaneous  instrument,^^  to  waive 
or  surrender  the  right  in  the  equity  of  redemption,^^  yet  it 
will  enforce  a  similar  agreement  subsequently  made,  where 
the  transaction  is  based  on  a  valuable  consideration  and  fairly 
conducted,^^  and  unmixed  with  any  advantage  taken  by  the 
mortgagee  of  the  necessitous  circumstances  of  the  mortgagor; 
otherwise  equity  will  hold  the  parties  to  the  original  relation 

28  Storer  v.  Bounds,    1    Ohio    St.  two  instruments,  instead  of  one,  to 

107.  effect  the  object." 

^^  Bonliam  v.  Newcomh,  2  Vent.  32  ggg  ante,  §§  1037,  1038. 

364,  1  Vern.  8.  33  stoutz  v.  Rouse,  84  Ala.  309, 

30  See  T comes  v.  Couset,  3  Atk.  4  So.  170;  McKinstry  v.  Conly,  12 

267;   East  India   Co.   v.   Aikyns,   1  Ala.  678;   Green  v.  Butler,  26  Cal. 

Compy.  347,  349;  Vernon  v.  Bethell,  595;  McMillan  v.  Richards,  9  Cal. 

2  Eden,  110;   IVillett  v.   Winnell,  1  365,  70  Am.  Dec.  655;  Mills  v.  Mills, 

Vern.  488.  26  Conn.  213 ;  Wynkoop  v.  Cowing, 

^"^In    Michigan,    in    the    case    of  21  111.  570;   Vernum  v.  Bahcock,  3 

Batty   V.   Snook,   5    Mich.   231,   the  Iowa,  194;  Linell  v.  Lyford,  72  Me. 

court  say:  "To  allow  the  equity  of  280;  Baugher  v.  Merryman,  22  Md. 

redemption  to  be  cut  off  by  a  for-  185;  Daugherty  v.  McColgan,  6  Gill, 

feiture  of  it  in  a  separate  contract  &  J.   (Md.)  275;  Hicks  v.  Hicks,  5 

would  be  a  revival  of  the  common  Gill.    &   J.    (Md.)    75;    Schickel   v. 

law  doctrine,  using  for  the  purpose  Hopkins,   2    Md.    Ch.   89 ;    Palis   v. 


1047] 


REDEMPTION. 


1441 


of  debtor  and  creditor.'*  But  it  is  said  that  while  the  mort- 
gagor may  thus  sell  the  equity  of  redemption  to  the  mortgagee, 
he  is  entitled  to  every  favorable  consideration  on  account  of 
the  unequal  relations  of  the  parties,  and  that  the  sale,  though 
not  void,  is  viewed  suspiciously.'^ 

The  supreme  court  of  the  United  States,  in  the  case  of 
Peugh  v.  Davis,'^  say:  "A  subsequent  release  of  the  equity 
of  redemption  may  undoubtedly  be  made  to  the  mortgagee. 
Tliere  is  nothing  in  the  policy  of  the  law  which  forbids  the 
transfer  to  him  of  the  debtor's  interest.  The  transaction  will, 
however,  be  closely  scrutinized  so  as  to  prevent  any  oppression 
of  the  debtor.  Especially  is  this  necessary  when  the  creditor 
has  shov.n  himself  ready  and  skillful  to  take  advantage  of 
the  necessities  of  the  borower.     Without  citing  the  authori- 


Conway  Ins.  Co.  89  Mass.  (7  Allen) 
46;  Trull  v.  Skinner,  34  Mass.  (17 
Pick.)  213;  Harrison  v.  Trustees 
Phillips  Academy,  12  Mass.  456; 
Batty  V.  Snook,  5  Mich.  231;  Mc- 
Nees  V.  Swaney,  50  Mo.  388;  Odell 
V.  Montross.  68  N.  Y.  499,  reyg. 
6  Hun  (N.  Y.)  155;  Remsen  v. 
Hay,  2  Ed.  Ch.  (N.  Y.)  535;  Hol- 
ridge  v.  Gillespie,  2  John  Ch.  (N. 
Y.)  34;  Hyndman  v.  Hyndman,  19 
Vt.  9,  16  Am.  Dec.  171;  Rogan  v. 
Walker,  1  Wis.  527;  Peugh  v. 
Davis.  96  U.  S.  332,  24  L.  ed.  775 ; 
Villa  V.  Rodriguez,  79  U.  S.  (12 
Wall.)  Z22>;  sub  nom.  Alexander  v. 
Rodriguez,  20  L.  ed.  406;  Russel  v. 
Southard,  53  U.  S.  (12  How.)  139, 
13  L.  ed.  927;  Morris  v.  Nixon.  42 
U.  S.  (1  How.)  119,  126,  11  L.  ed. 
69.  72. 

An  absolute  deed  of  land  was 
given  in  Trull  v.  Skinner.  34  Mass. 
(17  Pick.)  213.  accompanied  by  a 
simultaneous  instrument  not  re- 
corded, operating  by  way  of  de- 
feasance. The  parties  afterwards, 
by  mutual  stipulations,  agreed  that 
Mortg.  Vol.  H.— 91. 


the  defeasance  should  be  sur- 
rendered and  canceled  without  in- 
tent to  vest  the  estate  uncondition- 
ally in  the  grantee.  The  court  held 
that  this  was  a  valid  transaction,  if 
conducted  with  fairness  between  all 
parties  and  fights  of  third  persons 
had  not  intervened.  See  McNees 
V.  Swaney,  50  Mo.  388. 

3*  Stoutz  V.  Rouse,  84  Ala.  309.  4 
So.  170;  McKinstry  v.  Conly,  12 
Ala.  678;  Mills  v.  Mills,  26  Conn. 
213;  Wynkoop  v.  Cowing,  21  111. 
570;  Linnell  v.  Lyford,  72  Me.  280; 
Baugher  v.  Merryman,  32  Md.  185 ; 
Dougherty  v.  McColgan,  6  Gill  & 
J.  (Md.)  275;  Schickel  v.  Hopkins, 
2  Md.  Ch.  89;  Remsen  v.  Hay.  2 
Edw.  Ch.  (N.  Y.)  535;  Rogan  v. 
Walker,  1  Wis.  527;  Russell  v. 
Southard.  53  U.  S.  (12  How.)  139. 
13  L.  ed.  927;  Morris  v.  Nixon,  42 
U.  S.  (1  How.)  119,  126,  11  L.  ed. 
69.  72. 

^^  Hyndman  v.  Hyndman.  19  Vt. 
9.  46  Am.  Dec.  171.  See  Noble  v. 
Graham.  140  Ala.  413.  37  So.  230. 

36  96  U.  S.  332.  24  L.  ed.  775. 


1442  MORTGAGE    FORECLOSURES,  [§    1048 

ties,  it  may  be  stated  as  conclusions  from  them  that  a  release 
to  the  mortgagee  will  not  be  inferred  from  equivocal  circum- 
stances and  loose  expressions.  It  must  appear  by  a  writing 
in  terms  a  transfer  of  the  mortgage  or  interest,  or  such  facts 
must  be  shown  as  will  operate  to  estop  him  from  asserting 
any  interest  in  the  premises.  The  release  must  also  be  for  an 
adequate  consideration;  that  is  to  say,  it  must  be  for  a  con- 
sideration which  would  be  deemed  reasonable  if  the  transaction 
were  between  other  parties  dealing  in  similar  property  in  its 
vicinity.  Any  marked  undervaluation  of  the  property  in  the 
price  paid  will  vitiate  the  proceeding." 

§  1048.  Same — Setting  sale  aside. — A  sale  or  release  of 
the  equity  of  redemption  to  the  mortgagee  by  the  mort- 
gagor is  looked  upon  with  disfavor  by  courts  of  equity,  and 
will  be  avoided  for  fraud  of  any  kind,  either  actual  or  con- 
structive, or  for  any  advantage  taken  in  the  transaction  by 
the  mortgagee  of  the  mortgagor's  necessitous  circumstances.^''^ 
The  mortgagor  is  entitled  to  every  favorable  consideration 
on  account  of  the  unequal  relations  of  the  parties,  and  the 
sale,  though  not  void,  is  viewed  suspiciously.^*  It  must  dis- 
tinctly appear  that  the  transaction  is  in  all  respects  fair,  and 
based  upon  an  adequate  consideration.^^ 

In  the  case  of  Hicks  v.  Hicks,*°  the  relation  of  a  mort- 
gagor and  mortgagee  existed,  and  the  latter  purchased  from 
the  former  his  equity  of  redemption  worth  $2,000  or  $2,500 
for  $1,600.  The  court  held  it  not  such  an  inadequacy  of  price 
as  to  induce  a  court  of  equity  to  impeach  the  sale  as  unfair, 

3''' See    authorities    cited    in    last  Hun  (N.  Y.)   155;  Rcmsen  v.  Hay, 

four  sections.  2  Edw.  Ch.   (N.  Y.)  535;  Holridge 

^^ Hyndman  v.  Hyndman,  19  Vt.  v.  Gillespie,  2  John.  Ch.  (N.  Y.)  30, 

9,  46  Am.  Dec.  171.  34;  Barnes  v.  Brown,  71  N.  C.  507; 

^^  Patterson   v.    Yeaton,    47    Me.  Villa   v.   Rodriguez,   79   U.    S.    (17 

306;   Hicks  v.   Hicks,   5   Gill   &   J.  Wall.)  323;  sub  nom.  Alexander  v. 

(Md.)     75;    Trull    v.    Skinner,    34  Rodriguez,  20  L.  ed.  406;  Ford  v. 

Mass.     (17    Pick.)     213;    Odell    v.  Olden,  L.  R.  3  Eq.  Cas.  461. 
Montrass,    68    N.    Y.    499,    rev'g   6  40  5  Gill.  &  J.   (Md.)  75. 


§     1050]  REDEMPTION.  1443 

particularly  in  the  absence  of  corroborative  proof  of  frauds 
undue  advantage,  or  the  like. 

But  it  is  said  by  the  supreme  court  of  Wisconsin  in  the  case 
of  Moeller  v.  Moore,*^  that  a  conveyance  by  a  mortgagor  to 
the  mortgagee  of  a  valuable  equity  of  redemption,  upon  no 
consideration  other  than  the  assumption  of  a  mortgage  which 
is  a  first  lien  upon  land  worth  several  times  its  amount,  will 
be  set  aside  and  the  mortgagor  allowed  to  redeem,  even  if  the 
proof  is  insufficient  to  show  that  the  conveyance  was  intended 
only  as  a  mortgage. 

§  1049.  Same — Rule  governing  courts. — The  rule  gov- 
erning courts  of  equity  when  considering  the  right  to  redeem 
by  the  mortgagor,  who  has  conveyed  to  the  mortgagee  the 
equity  of  redemption,  is  like  that  which  governs  a  sale  by 
the  cestui  que  trust  to  his  trustee.*^  To  give  validity  to  a  sale 
of  the  equity  of  redemption  by  the  mortgagor  to  the  mort- 
gagee, the  conduct  of  the  mortgagee  must  be,  in  all  things, 
fair  and  frank,  and  he  must  pay  fair  value.  Any  indirection 
or  obliquity  of  conduct  is  fatal  to  his  title.  Every  doubt  will 
be  resolved  against  him.*^  He  must  take  no  advantage  of  the 
fears  or  poverty  of  the  other  party.  That  the  mortgagor  know- 
ingly surrendered  and  never  intended  to  reclaim  the  property 
is  of  no  consequence,  if  there  is  vice  in  the  transaction.** 

§  1050.  Merger  of  mortgage  in  equity  of  redemption. — - 

The  general  rule  at  law  is  that  when  a  greater  and  less  estate 
meet  in  the  same  person,  without  any  intermediate  estate,, 
the  less  estate  is  at  once  merged  in  the  greater.*^  This  rule  of 
law  is  inflexible.     The  doctrine  of  merger  springs  from  the 

41 80  Wis.  434,  5  N.  W.  396.  "  Villa    v.    Rodriguez,    79    U.    S. 

^^  Villa    V.    Rodriguez,    79   U.    S.  (12  Wall.)   323;  sub  nom.  Alexan- 

(12  Wall.)  323;  sub  nom.  Alexan-  der  v.  Rodriguez,  20  L.  ed.  406. 

der  V.  Rodriguez,  20  L.   ed.  406.  ^^  James   v.   Morey,  2   Cow.    (N. 

«  Villa   V.    Rodriguez,   79    U.    S.  Y.)  246,  14  Am.  Dec.  475. 
(12  Wall.)  323;  sub  nom.  Alexan- 
der V.  Rodriguez,  20  L.  ed.  406. 


)H4 


MORTGAGE    FORECLOSURES. 


[§   1050 


fact  that  when  the  entire  equitable  and  legal  estates  are  united 
in  the  same  person,  there  can  be  no  occasion  to  keep  them  dis- 
tinct, for  ordinarily  it  could  be  of  no  use  to  the  owner  to  keep 
up  a  charge  upon  an  estate  of  which  he  was  seized  in  fee 
simple;  but  if  there  is  an  outstanding  intervening  title  the 
foundation  of  the  merger  does  not  exist  as  a  matter  of  law.*^ 
Equity  does  not  favor  the  doctrine  of  merger;  and  where 
two  or  more  rights  or  estates  are  united  in  one  person,  equity 
will  keep  them  distinct,  where  from  the  intention  of  the  party, 
either  express  or  implied,  he  wishes  them  to  be  so  kept.*^ 
Consequently,  whether  the  mortgage,  on  becoming  vested  in 
the  same  person  with  the  equity  of  redemption,  is  merged  or 
continues  to  be  a  charge,  depends  upon  the  intention,  actual 
or  presumed,  of  the  person  in  whom  the  interests  are  united ; 
and  this  person  will  be  presumed  to  intend  that  which  is  most 
to  his  advantage.**    Hence,  where  the  equity  of  redemption  is 


^^  Stanton  V.  Thompson,  49  N.  H. 
272.  See  Coates  v.  Cheever,  1  Cow. 
(N.  Y.)  460. 

^"^  James  v.  Morey,  2  Cow.  (N. 
Y.)  246,  14  Am.  Dec.  475.  See 
Robertson  v.  Wheeler,  162  111.  566, 
44  N.  E.  870. 

^^  Lyon  V.  Ilvain,  24  Iowa,  9; 
Davis  V.  Pierce,  10  Me.  376;  Free- 
manv.Paul,  3  Me.  (3  Greenl.)  260, 
14  Am.  Dec.  237;  Hunt  v.  Hunt,  31 
Mass.  (14  Pick.)  374,  25  Am.  Dec. 
400 ;  Hinchman  v.  Emans,  1  N.  J. 
Eq.  (1  Saxt.)  100;  Payne  v.  Wil- 
son, 7A  N.  Y.  354;  Mason  v.  Lord, 
40  N.  Y.  476,  489 ;  Bascom  v.  Smith, 
34  N.  Y.  320,  329;  Champncy  v. 
Coope,  32  N.  Y.  542,  548;  Thomp- 
son V.  VanVechten,  27  N.  Y.  579, 
5  Abb.  (N.  Y.)  Pr.  464,  6  Bosw. 
(N.  Y.)  465;  Michaels  v.  Town- 
send,  18  N.  Y.  575,  582;  Clift  v. 
White,  12  N.  Y.  519,  525,  535,  15 
Barb.  75 ;  Spencer  v.  Ayrault,  10  N. 
Y.  202,  204;   Warner  v.  Blakeman, 


36  Barb.  (N.  Y.)  524;  Casey  v.  But- 
tolph,  12  Barb.  (N.  Y.)  639;  Reid 
V.  Latson,  15  Barb.  (N.  Y.)  14; 
Averill  v.  Wilson,  4  Barb.  (N.  Y.) 
191 ;  Schermerhorn  v.  Merrill,  1 
Barb.  (N.  Y.)  516;  James  v.  Morey, 
2  Cow.  (N.  Y.)  246,  14  Am.  Dec. 
475;  Day  v.  Mooney,  4  Hun  (N. 
Y.)  134;  Starr  v.  Ellis,  6  John.  Ch. 
(N.  Y.)  393;  Hitchcock  v.  Harring- 
ton, 6  John.  (N.  Y.)  290,  5  Am. 
Dec.  229;  Gardner  v.  Astor,  3  John. 
Ch.  (N.  Y.)  53,  8  Am.  Dec.  465; 
Skeel  V.  S Parker,  8  Paige  Ch.  (N. 
Y.)  186;  Russell  v.  Austin,  1  Paige 
Ch.  (N.  Y.)  96;  Pelletreau  v.  Jack- 
son, 11  Wend.  (N.  Y.)  \\S;  Roberts 
V.  Jackson,  1  Wend.  (N.  Y.)  484; 
Patten  v.  Bond,  60  L.  T.  583,  585 ; 
Thomas  v.  Kemish,  2  Vern.  348, 
Forbes  v.  Moffatt,  18  Ves.  385,  390, 
11  Rev.  222,  4  Kent.  Com.  99-104. 
Foundation  of  equitable  doc- 
trine—  Forbes  v.  Moffatt.  —  The 
equitable    doctrine    annunciated    by 


§   1050] 


REDEMPTION. 


1445 


purchased  by  the  mortgagee  a  merger  does  not  take  place  in 
those  cases  where  it  is  to  the  interest  of  the  mortgagee  to 
keep  the  mortgage  alive,  and  this  can  be  done  without  preju- 


the  American  courts  rests  largely 
upon  the  case  of  Forbes  v.  Moffatt, 
18  Ves.  385,  11  Rev.  822,  decided  in 
1811,  in  which  Sir  William  Grant, 
master  of  the  rolls,  held  that  a 
mortgage  is  not  merged  by  union 
with  the  fee,  where  such  merger 
would  be  prejudicial  to  the  owner. 
In  this  case  the  facts  were  as  fol- 
lows :  "'John  Moffatt  held  a  mort- 
gage of  certain  estates  to  secure 
the  payment  of  thirteen  thousand 
pounds.  Afterwards,  the  mort- 
gagor died,  having  by  his  will  de- 
vised all  his  property,  real  and  per- 
sonal, to  the  said  John  Moffatt,  the 
mortgagee ;  and  the  question  was, 
whether  the  mortgage  was  extin- 
guished or  sunk  in  the  devise.  Sir 
William  Grant,  the  master  of  the 
rolls,  in  delivering  his  opinion,  lays 
down  certain  principles,  regulating 
in  all  questions  of  such  a  nature. 
He  observes :  'It  is  very  clear 
that  a  person  becoming  entitled  to 
an  estate  subject  to  a  charge  for 
his  own  benefit,  may,  if  he  chooses, 
at  once  take  the  estate  and  keep 
•  up  the  charge.  The  question  is 
upon  the  intention,  actual  or  pre- 
sumed, of  the  person  in  whom  the 
interests  are  united.  In  most  in- 
stances it  is,  with  reference  to  the 
party  himself,  of  no  sort  of  use  to 
have  a  charge  on  his  own  estate ; 
and  where  that  is  the  case,  it  will 
be  held  to  sink,  unless  something 
shall  have  been  done  by  him  to  keep 
it  on  foot.  The  owner  of  a  charge 
is  not,  as  a  condition  of  keeping 
it  up,  called  upon  to  repudiate  the 
estate.    The  election  he  has  to  make 


is  not  whether  he  will  take  the  es- 
tate or  the  charge ;  but  whether  tak- 
ing the  estate  he  means  the  charge 
to  sink  in  it  or  continue  distinct 
from  it.'  Whether  no  intention  is 
expressed  by  words  or  actions  on 
the  part  of  the  mortgagee,  as  to 
the  manner  in  which  he  holds  the 
estate  after  acquiring  the  whole 
title,  recourse  is  to  be  had  to  pre- 
sumptive intention.  On  this  point 
the  master  of  the  rolls  proceeds 
and  says :  'With  regard  to  presump- 
tive intention,  it  was  evidently  most 
advantageous  for  John  Moffatt  that 
this  mortgage  should  be  kept  on 
foot,  for  otherwise,  he  would  have 
given  priority  to  the  other  mort- 
gage, and  all  the  debts  of  his 
brother  (the  mortgagor).  The  rea- 
sonable presumption,  therefore,  is 
that  he  would  choose  to  keep  the 
mortgage  on  foot.  When  no  inten- 
tion is  expressed,  or  the  party  is 
incapable  of  expressing  any,  I  ap- 
prehend the  court  considers  what  is 
most  advantageous  to  him.  Upon 
that  principle  it  was  holden  in  the 
case  of  Thomas  v.  Kemish,  2  Vern. 
348,  that  the  charge  should  not 
sink;  as  that  was  for  the  ad- 
vantage of  the  infant."  He  further 
observes :  'Upon  looking  into  all  the 
cases  in  which  charges  have  been 
held  to  merge,  I  find  nothing  which 
shows  that  it  was  not  perfectly 
indifferent  to  the  party  in  whom 
the  interests  had  united,  whether 
the  charge  should  or  should  not 
subsist;  and  in  that  case  I  have 
already  said  it  sinks.' " 


1446  MORTGAGE    FORECLOSURES.  [§    1051 

dice  to  the  rights  of  the  mortgagor,  or  of  third  persons.*^  And 
where  there  is  an  assignment  of  a  mortgage  in  process  of  fore- 
closure to  the  holder  of  the  equity  of  redemption,  and  he  goes 
on  and  prosecutes  the  foreclosure  suit  to  judgment  and  sells 
the  premises,  it  is  presumed  from  such  act  that  he  does  not 
intend  to  have  the  equity  of  redemption  merge  in  the  legal 
estate,  and  therefore  a  merger  will  not  take  place.^°  In  those 
cases  where  the  purchase  of  a  senior  mortgage  by  the  pur- 
chaser of  the  equity  of  redemption,  is  to  protect  his  title,  this 
does  not  create  a  merger  so  as  to  extinguish  the  lien  of  the 
mortgage,  and  on  a  foreclosure  by  the  latter  the  first  mortgage 
must  be  the  first  paid.^^ 

§  1051.  Redemption  money — Lien  for. — The  supreme 
court  of  Michigan,  in  the  case  of  Powers  v.  Golden  Lumber 
Company, ^^  say  that  a  lien  for  redemption  money  is  an  inde- 
pendent equity,  and  not  merely  appurtenant  to  the  mortgage 
held  by  a  mortgagee  who  has  redeemed,  so  that  proceedings 
to  enforce  the  lien  may  be  taken  before  such  mortgage  ma- 
tures, and  the  discharge  of  the  mortgage  does  not  cut  off 
the  lien. 

§  1052.  On  sale  under  a  power. — A  sale  of  mortgaged 
lands  under  a  power  contained  in  the  mortgage  cuts  off  the 
equity  of  redemption  in  the  absence  of  any  statutory  pro- 
vision showing  the  right. ^^  For  this  reason  a  court  of  equity 
will  examine  with  the  closest  scrutiny  such  a  sale  and  where 

*9  Vannice    v.    Bergen,    16    Iowa,  City  Lumber  Co.   139  Ala.  571,  36 

555,  85  Am.  Dec.  531.    See  McClas-  So.  785. 

key    V.    O'Brien,    16    W.    Va.    847;  ^^  Knowles  v.  Lawton,  \%  Gz.  A76, 

Hoffman     v.     Wilhelm,    68     Iowa,  63  Am.   Dec.  290. 

514,    27    N.    W.    483;    Dcnhani    v.  ^^  Millspaugh  v.  McBride,  7  Faige 

Snakey,  38  Iowa,  271;  Millspaugh  Ch.   (N.  Y.)  509,  34  Am.  Dec.  360. 

V.  McBride,  7   Paige  Ch.    (N.  Y.)  5243  Mich.  468,  5  N.  W.  656. 

509,  34  Am.   Dec.   360;   Duncan  v.  ^^  Powers    v.    Andrews,    84    Ala. 

Drury,  9  Pa.  St.  332,  49  Am.  Dec.  289,  4  So.  263. 
565.     See   also   Rothschild   v.   Bay 


§    1053]  REDEMPTION.  1447 

the  rights  of  third  persons  have  not  intervened,  redemption 
conditioned  upon  the  full  payment  of  all  that  is  due  the  holder 
of  the  indebtedness  will  be  allowed  in  case  of  any  unfairness 
on  the  part  of  the  trustee  resulting  in  injury  to  the  debtor. ^^ 
And  it  is  said  in  Lovelace  ^  .  Hutchinson  ^®  that  conveyances  of 
the  mortgaged  premises  by  the  mortgagee  do  not  stand  in  the 
way  of  redemption  by  the  mortgagor  or  his  privies  from  a  sale 
under  a  power  in  the  mortgage,  where  such  conveyances  are 
without  any  consideration  and  are  fraudulent  as  against  the 
mortgagor  and  those  claiming  under  him. 

It  is  said  by  the  supreme  court  of  Missouri,  in  the  case 
of  Godfrey  v.  Stock,®^  that  the  owner  of  mortgaged  premises 
sold  under  a  power  contained  in  a  deed  of  trust,  who  gives 
notice  on  the  day  of  sale  to  the  trustee  and  the  purchaser, 
who  is  an  assignee  of  the  cestui  que  trusty  of  his  intention  to 
redeem,  but  fails  to  make  application  to  the  court  for  leave 
to  give  security  for  two  days,  on  account  of  sickness,  does 
not  thereby  lose  the  right  to  redeem  under  the  Missouri 
statute,"  allowing  redemption  from  such  sale  within  a  year, 
upon  condition  that  security  be  given  for  interest  and  damages 
and  waste  permitted  by  the  owner,  on  the  ground  that  he  has 
not  used  diligence. 

§  1053.  Extinguishment  of  right  of  redemption. — We 
have  already  seen  that  the  right  of  redemption,  being  a  recip- 
rocal right, ^*  is  an  incident  of  every  mortgage  *^  which  cannot 
be  waived  ^°  or  surrendered,^^  except  by  the  free  act  of  the 
mortgagor,  in  a  proper  manner,  for  an  adequate  considera- 
tion,^^ evidenced  by  an  instrument  in  writing, ^^  or  by  judg- 

^'^  Williamson    v.    Stone,    128    111.  59  See  a«/^,  §  1029. 

129,  22  N.  E.  1005,  aff'g  27  111.  App.  eo  See  ante,  %  1036. 

214.  61  See  ante,  §  1037. 

55  17  So.    (Ala.)    623.  62  See  ante,  §  1038,  et  seq.;  O'Dell 

56  116  Mo.  403,  22  S.  W.  733.  v.  Men  toss,  68  N.  Y.  499,  reversing 

57  Mo.   Rev.   Stat.    1889,   §§   7079,  6  Hun  (N.  Y.)  155. 
7080.  63  See  ante,  §   1039. 

58  See  ante,  §  102& 


1448  MORTGAGE    FORECLOSURES.  [§    1054 

ment  of  a  court  of  competent  jurisdiction,  or  by  statutory  pro- 
ceedings out  of  court  which  are  the  equivalent  of  an  equitable 
action,^*  or  by  the  neglect  of  the  mortgagor  to  assert  his  rights 
until  after  the  running  of  the  statute  of  limitations^^  or  by 
conduct  amounting  to  an  estoppel  in  pais.^^  But  in  all  cases 
where  the  mortgagor's  equity  is  once  extinguished  it  should 
remain  absolutely  blotted  out  forever." 

§  1054.  Same — By  action  and  sale. — The  general  rule 
is  that  a  person  who  has  taken  an  absolute  deed  as  security 
for  a  loan  must  file  a  bill  in  order  to  cut  off  the  debtor's  right 
to  redeem,  and  is  obliged  to  accept  the  amount  due  and 
reconvey  the  property,  where  such  amount  is  properly  ten- 
dered at  any  time  before  the  right  to  redeem  is  cut  off.^^ 

The  supreme  court  of  Michigan,  in  the  case  of  Humphrey 
V.  Turd,^^  say  that  the  mere  assumption  of  a  mortgagee, 
evidenced  by  his  giving  a  deed,  that  he  has  title  in  fee,  cannot 
bar  the  equity  of  redemption;  nor  can  an  occasional  occupa- 
tion under  such  deed,  or  any  occupation  short  of  a  continuous 
and  notorious  one,  adverse  to  the  right  to  redeem,  give  it 
that  effect. 

In  those  cases  where  the  original  transaction  between  a 
mortgagor  and  mortgagee  was  not  in  form  a  mortgage,  but 
an  absolute  deed,  with  a  bond  to  reconvey  on  the  payment 
of  the  money  at  a  specified  time,  still  it  is  not  essential  to  the 
proper  extinguishment  of  the  right  of  redemption,  by  an  ar- 
rangement between  the  parties  themselves,  that  it  should  be 
done  by  an  instrument  which  will  operate  as  a  technical  con- 
veyance of  the  mortgagor's  estate  in  the  land.  If  transactions 
have  occurred  between   the   parties   which   render   it   inequi- 

64  See  post,  §  1054.  11  N.  J.  Eq.   (3  Stock.)    137,  2  Co. 

65  See  post,  chap.  xl.  Litt.  (19th  ed.  p.  302,  §  532. 

^^  Estoppel    in    pais.      See    post.  ^^  McSorley   v.  Hughes,   58   Hun 

§  1061.  (N.  Y.)  360.  34  N.  Y.  S.  R.  945,  12 

67  Chapin  v.  Wright,  41  N.  J.  Eq.  N.  Y.  Supp.  179. 

438,  5  Atl.  574;  Bates  v.  Conrow,  69  29  Mich.  44. 


§     1054]  REDEMPTION.  1449 

table  that  the  grantor  should  be  permitted  to  redeem,  that,  of 
itself,  without  a  technical  release,  will  operate  as  a  cancelation 
of  the  instrument  of  defeasance,  and  give  to  the  deed  the 
effect  of  an  original,  absolute  conveyance  as  between  the  par- 
ties.'" But  where  a  mortgagee  takes  possession,  not  simply 
under  his  mortgage,  but  under  a  valid  sheriff's  deed  on  execu- 
tion against  the  mortgagor  for  another  than  the  mortgage 
debt,  there  can  be  no  redemption.'^ 

In  those  cases  where  a  power  is  subsequently  given  to  the 
trustees  in  a  trust  deed  empowering  them  to  foreclose,  and 
authorizing  the  mortgagor  to  sell  the  lands  and  substitute  the 
proceeds  for  reinvestment  by  the  trustees  as  a  sinking  fund, 
and  to  sell  the  lands  themselves  to  carry  out  the  trust,  author- 
izes a  sale  without  right  of  redemption.'^ 

'0  West  V.  Reed,  55  111.  242.  '2  Thompson  v.  Ellens,  58  Minn. 

71  Freickencht  v.  Meyer,  38  N.  J.      301,  59  N.  W.  1023. 
Eq.  (11  Stew.)  315. 


CHAPTER  XXXVIII. 

REDEMPTION— CIRCUMSTANCES  AFFECTING. 

§  1055.  Extinguished   by   foreclosure. 

§  1056.  Failure  to  make  interested  person  party — Effect. 

§  1057.  Same — Compelling  redemption. 

§  1058.  Agreement  between  parties. 

§  1059.  Sale  of  equity  of  redemption — Effect  on  rights. 

§  1060.  Payment   after  breach   of   condition — Effect. 

§  1061.  Estoppel  in  pais. 

§  1062.  Conveyance  by  mortgagee. 

§  1063.  Two    or    more   mortgages    on    one   tract — Redeeming    from    one. 

§  1064.  Separate    mortgages    on    separate    tracts — Redeeming    from    one. 

§  1065.  Redemption  by  part  owner — Extent  of  right. 

§  1066.  Same — Remedy  on. 

§  1067.  Statutes   regulating  redemption. 

§  1068.  Same — Designating  a  shorter  time. 

§  1069.  Same — Filing  deed  or  certificate  under. 

§  1070.  Same — Accepting  part  payment — Effect. 

§  1071.  Same — Mortgagor's       possession       during — Constitutionality       of 

statute. 
§  1072.  Same — Possession  by  purchaser  during — Accounting. 
§  1073.  Same — After  foreclosure — By  creditor. 
§   1074.  Same — Same — By  junior  lienor. 
§  1075.  Same — Same — By  assignee  of  junior  lienor. 
§  1076.  Same — Same — Conditions  on. 

§  1055.  Extinguished  by  foreclosure. — The  right  of  a 
mortgagor  and  those  claiming  under  him  to  redeem  from  the 
mortgage  is  extinguished  by  a  foreclosure  when  properly 
made.'^     Such  a  foreclosure  of  a  mortgage  bars  the  right 

'3  Knox    V.    Armstead,    87    Ala.  dard  v.  Forbes,  13  Iowa,  296 ;  Lewis 

511,   13  Am.  St.  Rep.  65,  5  L.R.A.  v.  Smith,  9  N.  Y.  502,  61  Am.  Dec. 

297,  6  So.  311;  Willis  v.  Mcintosh,  706;   Thompson  v.  Paris.  63  N.  H. 

1  Ga.  Dec.  162;  Ballinger  v.  Bour-  421;    Bennett  v.   Austin,  81    N.   Y. 

land,  87  111.  513.  29  Am.  Rep.  69;  308;  Beaufort  County  Lumber  Co. 

Werner  v.  Heints,  17  111.  256;  Stod-  v.  Dail,  112  N.  C.  350,  17  S.  E.  527. 

1450 


1055] 


REDEMPTION. 


1451 


of  redemption  of  the  mortgagor  and  of  all  persons  claiming 
under  him,  including  minor  heirs;  and  such  heirs  have  no 
right  to  redeem  on  showing  a  want  of  actual  notice,  or  the 
failure  to  have  a  guardian  ad  litem  appointed  and  notice  given 


denying  rehearing  in  111  N.  C.  120, 
IS  S.  E.  941 ;  Shackley  v.  Homer, 
87  Neb.  146,  127  N.  W.  145 ;  Payne 
V.  Long-Bell  Lumber  Co.  9  Okl. 
683,  60  Pac.  235;  White  v.  Smith, 
174  Mo.  186,  73  S.  W.  610. 

As  to  when  redemption  may  be 
made,  see  full  discussion,  post,  chap. 

XLI. 

In  the  case  of  Bennett  v.  Austin, 
81  N.  Y.  308,  the  Western  Elevat 
ing  Company,  a  general  association 
of  a  trust  character,  took  from  the 
different  owners  of  elevators  in 
Buftalo  instruments  called  leases, 
giving  the  association  the  right  of 
possession  and  control.  By  a  con- 
temporaneous w^ritten  contract  of 
the  Western  Elevating  Company 
with  the  owner  of  each  elevator, 
the  later  was  permitted  to  operate 
his  elevator  in  the  service  of  the 
Western  Elevating  Company  at  a 
fixed  compensation  per  bushel,  in- 
tended to  pay  for  such  service  and 
expenses,  the  profits  being  devided 
among  the  so-called  lessors.  The 
firm  of  B  &  A,  owning  two  ele- 
vators, so  leased  for  a  term  of 
three  years,  assigned  their  share  of 
the  profits  to  S  &  Co.,  the  holders 
of  a  mortgage  thereon,  to  be  ap- 
plied in  liquidation  of  the  debt  and 
of  prior  incumbrances.  A  and  B, 
and  B's  wife,  who  had  a  separate 
interest  in  the  two  elevators,  con- 
veyed them  to  C  to  secure  advances 
made  to  B  &  A,  he  knowing  of  the 
arrangement  with  S  &  Co.  After- 
wards C,  by  setting  up  the  ap- 
parent   title    under    his    deed,    and 


without  the  consent  of  B  &  A  or  of 
S  &  Co.,  induced  the  Western  Ele- 
vating Company  to  substitute  for 
the  lease  a  new  one  from  himself 
as  owner  of  the  two  elevators,  of 
which  he  took  possesison,  thence- 
forth receiving  and  retaining  the 
dividends.  Thereupon  S  &  Co. 
foreclosed  their  mortgage,  and,  by 
an  arrangement  with  them,  C,  after 
judgment,  obtained  control  of  the 
sale  and  became  the  purchaser  for 
the  amount  of  the  judgment.  In  an 
action  by  B  and  wife  to  have  the 
deed  to  C  declared  a  mortgage,  and 
to  redeem,  the  court  held:  (1)  that 
C's  widow  and  devisee  could  not,  in 
equity,  avail  herself  of  the  title  ob- 
tained on  foreclosure  sale  to  defeat 
the  plaintiffs'  equity  of  redemption, 
they  having  the  right  to  have  the 
dividends  set  apart  for  the  re- 
duction of  the  mortgage  of  S.  & 
Co.  applied  to  that  purpose;  (2) 
That  C,  on  possessing  hi-5?jse!f  of 
the  dividends,  became  ex  maleficio, 
constructively  a  trustee  of  the 
fund,  and  the  law  imposed  on  him 
the  duty  to  apply  the  dividends  to 
reduce  the  mortgage.  The  purchase 
in  his  own  behalf,  taking  advantage 
of  his  own  wrong,  did  not  cut  off 
the  right  to  redeem;  (3)  That  B, 
having  no  defense  to  the  mortgage, 
was  not,  by  not  defending  against 
the  foreclosure,  precluded  from 
contesting  the  title  obtained  under 
it;  (4)  That  B's  rights  were  not 
affected  by  the  usual  clause  in  the 
foreclosure  decree  authorizing  any 
party  to  the  action  to  become  a  pur- 


1452  MORTGAGE    FORECLOSURES.  [§    1055 

to  him.'*  A  decree  against  a  defendant  made  party  to  a  fore- 
closure suit  under  a  general  allegation  that  he  claimed  some 
interest  in  the  premises  "as  subsequent  purchaser  or  incum- 
brancer, or  otherwise,"  bars  rights  and  interests  in  the  equity 
of  redemption,  but  not  those  which  are  paramount  to  the  title 
of  both  mortgagor  and  mortgagee.'* 

But  the  equity  of  redemption  is  not  extinguished  by  a  decree 
of  foreclosure  until  the  decree  is  executed  by  a  sale ;  '^  conse- 
quently, one  who  purchases  after  the  decree  and  before  the 
sale  thereunder,  becomes  the  owner  of  the  right  to  redeem." 
In  those  cases  where  a  power  in  a  mortgage  giving  the  mort- 
gagee the  right  to  purchase  as  if  he  were  not  a  party,  when 
exercised  without  fraud  or  oppression,  deprives  the  mort- 
gagor of  the  right  to  redeem.'* 

The  supreme  court  of  North  Carolina,  in  the  case  of  Beau- 
fort County  Lumber  Company  v.  Dail,'*  say  that  the  equity 
of  redemption  in  timber  on  mortgaged  land,  conveyed  by 
the  mortgagor  to  the  holder  by  assignment  of  the  mortgage, 
who  makes  a  verbal  agreement  that  the  mortgage  shall  not 
embrace  the  timber ;  is  cut  ofT  by  foreclosure  of  the  mortgage 
by  a  subsequent  assignee,  as  against  one  to  whom  the  equity 
of  redemption  is  conveyed  after  the  assignment  of  the  mort- 
gage. 

chaser;  and  this,  although  the  facts  '^  See  Barnard  v.  Jersey,  39  Misc. 

as   to  the  assignment   of  the   divi-  212,  79  N.  Y.  Supp.  380. 

dends  and  the  subsequent  action  of  In    Wisconsin   the   equity   of    re- 

C  were  set  forth  in  the  complaini  as  demption  is  not   extinguished  until 

a   foundation  of  a  claim  against  C  the  sale  has  been  confirmed.     Ger- 

for  dividends  :  and  (5)  That  the  fact  hardt  v.  Ellis,  134  Wis.  191,  114  N. 

that  C  was,  in  his  own  right,  own-  W.  495. 

er  of  one-third  of  one  of  the  two  '^'  Willis  v.  Smith,  66  Tex.  31. 

elevators,    did    not   alter    the    case  ''^  K)iox  v.  Armstead,  87  Atl.  511. 

further  than  merely  to  reduce  the  13  Am.  St.   Rep.  65,  5  L.R..\.  297, 

amount  he  was  bound  to  apply  on  6  So.  311. 

the  mortgage  of  S.  &  Co.  '^  112  N.  C.  350,  17  S.  E.  527.  de- 

"l^  Thompson   v.   Paris,  63   N.   H.  nying  re-hearing  in  111   N.   C.   120, 

421.  15  S.  E.  941. 

75  Lewis  V.  Smith,  9  N.  Y.  502,  61 
Am.  Dec.  706. 


§     1056]  REDEMPTION.  1453 

§  1056.  Failure  to  make  interested  person  party — Ef- 
fect.— The  right  to  redeem  from  a  mortgage  is  incident  to 
every  mortgage,^"  and  belongs  to  the  mortgagor  and  every 
person  claiming  under  him.  This  right  cannot  be  extinguished 
except  by  due  process  of  law,*^  or  the  acts  or  omissions  of  the 
party  himself.*^  Every  person  interested  in  the  mortgaged 
property  and  entitled  to  redeem  from  the  mortgage,  must  be 
made  a  party  to  the  proceeding  and  given  an  opportunity  of 
exercising  his  right  to  redeem,  otherwise  the  proceedings,  as 
to  those  not  made  parties,  will  be  a  nullity.*^  Thus  the  su- 
preme court  of  Iowa  have  held  that  a  purchaser  at  a  tax  sale 
of  land  mortgaged  to  the  school  fund  is  not  cut  off  from  his 
right  to  redeem  from  such  mortgage  by  foreclosure  proceed- 
ings to  which  he  is  not  made  a  party. ^*  In  those  cases  where 
a  mortgage  has  been  foreclosed  in  an  action  to  which  a  junior 
lien-holder  has  not  been  made  a  party,  the  purchaser  under  the 
foreclosure  may  maintain  an  action  requiring  the  junior  lien- 
holder  to  exercise  his  right  of  redemption,   and  in  default 

80  See  ante,  §  1029.  34,  24  L.  ed.    909,    arose.     In    this 

81  See  ante,  §§  1053,  1054.  case  A,  the  owner  in  fee  of  certain 

82  See  post,  §   1061.  land    which    was    mortgaged   to   B, 
^^  Murdoch  v.  Ford,  17  Ind.  52;  contracted    in    writing   to    sell   and 

Ayers  v.  Adair  County,  61  Iowa,  convey  it  to  C,  who  thereupon 
728,  17  N.  W.  161 ;  Shaw  v.  Heisey,  entered,  and  thereafter  remained  in 
48  Iowa,  468;  Johnson  v.  Harmon,  open  possession.  The  agreement 
19  Iowa,  56;  Bates  v.  Ruddick,  2  was  foreclosed  by  suit,  and  the 
Iowa,  423,  65  Am.  Dec.  774;  Barker  a  deed  was  given  to  C;  but,  before 
V.  Child,  25  N.  J.  Eq.  (10  C.  E.  the  deed  was  given  B's  mortgage 
Gr.)  41;  Miner  v.  Beekman,  50  N.  was  subsequently  carried  out,  and 
Y.  ZZ7,  14  Abb.  (N.  Y.)  Pr.  N.  S.  premises  were  sold  in  accordance 
1,  42  How  (N.  Y.)  Pr.  ii;  Sell-  with  the  decree.  The  court  held 
wood  V.  Gray,  11  Oreg.  534,  5  Pac.  that  C,  not  having  been  made  a 
196;  Noyes  v.  Hall,  97  U.  S.  34,  party  to  the  foreclosure  suit,  was 
24  L.  ed.  909.  not  bound  by  it,  and  was,  notwith- 
In  Illinois  actual  and  open  pes-  standing  the  decree  and  sale,  en- 
session  of  land  is  equivalent  to  titled  to  redeem, 
registry. — Under  this  statute  the  84  Ayers  V.  Adair  County,  61 
case    of    Noyes   v.    Hall,   97   U.    S.  Iowa,  728.  17  N.  W.  161. 


1454  MORTGAGE    FORECLOSURES.  [§    1057 

thereof  is  entitled  to  a  decree  cutting  off  such  right  of  re- 
demption.^* 

§  1057.  Same — Compelling  redemption. — The  court  of 
chancery  of  New  Jersey,  in  the  case  of  Parker  v.  Child,'^  say 
that  a  first  mortgagee,  on  purchasing  at  his  foreclosure  sale, 
may  require  a  second  mortgagee,  who  by  oversight  was  not 
made  a  party  to  the  suit,  to  redeem  within  a  reasonable  time 
or  to  be  foreclosed;"  and  this,  not  only  for  the  amount  of 
principal  and  interest  due,  but  also  for  the  purchase-money 
paid  by  him  over  and  above  such  amount,  in  liquidation  of 
claims  prior  to  the  second  mortgage,  to  the  rights  of  the 
holders  of  which  claims  the  purchaser  had  been  thereby  sub- 
rogated. And  in  Kansas  it  is  held  that  a  mortgagee  in  posses- 
sion, having  the  right  to  retain  possession  against  the  holder 
of  the  legal  title  may  bring  suit  to  have  his  rights  adjudicated.** 

§  1058.  Agreement  between  parties. — The  parties  to  a 
mortgage  have  the  same  right  and  power  to  contract  respect- 
ing the  mortgaged  bonds  as  they  would  have  if  they  did  not 
sustain  the  relation  of  mortgagor  and  mortgagee;  the  only 
difference  is  that  the  terms  of  the  agreement  and  the  means  or 
influences  used  to  bring  it  about  will  be  much  more  rigidly 
scrutinized  to  prevent  fraud  and  oppression.*^  Thus  it  has 
been  held  by  the  supreme  court  of  Illinois,  that  an  agreement 
by  which,  in  consideration  of  quitclaim  deeds  of  the  mortgaged 
premises  to  the  mortgagee,  he  gives  an  extension  of  time  for 
a  portion  of  the  debt,  and  a  right  to  redeem  a  certain  part  of 
them  upon  payment  of  a  certain  portion  of  the  debt,  may  be 
enforced. ^°     But  the  acceptance  of  a  quitclaim  or  other  deed 

85  Shaw  V.  Heisey,  48  Iowa,  468.       653 ;   Jaggar  v.    Plunkett,   81    Kan. 

86  25  N.  J.  Eq.  (10  C.  E.  Gr.)  41.      565,  25  L.R.A.(N.S.)  935,  106  Pac. 

87  See   also  Kelly    v.    Houts,    30      280. 

Ind.  App.  474,  68  N.  E.  408.  89  See  ante,  §§   1033,   1044. 

^^  Henthorn    v.    Security    Co.    as  ^^  Union   Mutual  Life  Insurance 

trustee,   etc.   70  Kan.  808,   79   Pac. 


§    1059]  REDEMPTION.  1455 

of  the  grantor's  right  to  redeem  an  estate  under  mortgage, 
does  not  impose  upon  the  grantee  an  obligation  to  pay  the 
mortgage  debt,  and  redeem  the  estate ;  and  he  may  afterwards 
become  the  assignee  of  the  mortgage,  without  thereby  dis- 
charging it.'^ 

The  court  of  chancery  of  New  Jersey,  in  the  case  of  Snyder 
V.  Greaves,^^  say  that  a  mortgagee  who,  upon  the  foreclosure 
of  his  mortgage,  agrees  with  the  mortgagor  to  purchase  the 
property  at  the  sale  and  convey  it  to  the  mortgagor,  continues 
to  hold  the  title  after  such  purchase,  as  security  only  for  the 
payment  of  the  amount  due  upon  his  decree,  and  if  he  fails  to 
convey,  the  mortgagor  may  redeem.'' 

§1059.  Sale  of  equity  of  redemption  —  Effect  on 
Rights. — The  voluntary  sale  by  the  mortgagor  of  his 
equity  of  redemption  extinguishes  the  right  of  himself  and 
those  claiming  under  him  to  redeem  the  mortgaged  premises 
from  the  lien  of  the  mortgage.^*  The  same  is  true  where  there 
is  a  sale  on  execution  for  other  indebtedness.^^  Such  a  sale  de- 
prives the  holder  of  the  mortgage  indebtedness  of  his  right  of 
election  of  remedies,  between  suit  on  the  notes  or  foreclosure.'^ 
The  supreme  court  of  Illinois,  in  the  case  of  Rogers  v.  Mey- 

Co.  V.  Kirchoff,  133  111.  368,  27  N.  and  the  balance,  if  A  should  want 

E.  91,  aff'g  33  111.  App.  607.  it,  for  $1,200;  if  the  owner  of  the 

^"^  Rogers  v.   Meyers,  68   111.   92;  equity  redeemed,  B  was  to  have  all 

Randall    v.    Bradley,    65    Me.    43;  the  redemption  money.     The  court 

Adams  v.  Hudson  County  Bank,  10  held  that  A  had  no  right  to  redeem 

N.  J.  Eq.    (2  Stock.)    535,  64  Am.  from  B  by  paying  $2,500. 

Dec.  469.  9*  See  Braun  v.  Vollmcr,  89  App. 

92  21  Atl.  291.  Div.  43,  85  N.  Y.  Supp.  319.     See 

93  In     the     case     of    Hensley    v.  also  Harris  v.  Masterson,  91   Tex. 
IVInffin,  58  Iowa,  426,  A,  a  junior  171,  41  S.  W.  482. 

mortgagee,  after  foreclosure  of  the  ^5  An  equity  of  redemption  can- 
first  mortgage,  made  an  agreement  not  be  sold  upon  two  or  more  exe- 
with  B,  by  which  B  was  paid  $2,500  cutions  jointly  in  favor  of  different 
to  buy  the  certificate  of  sale  and  was  creditors.  Chapman  v.  Andros- 
to  convey  a  certain  portion  of  the  coggin  R.  R.  Co.  54  Me.  160. 
land  to  A  upon  payment  of  $1,800,  ^^  Rogers  v.  Meyers,  68  111.  92. 


1456  MORTGAGE    FORECLOSURES.  [§    1060 

ers.^'  say  that  the  purchase  on  execution  of  the  mortgagor's 
equity  of  redemption  by  a  stranger  to  the  mortgage,  for  other 
indebtedness,  will  not  afifect  the  right  of  the  mortgagee  or  his 
assignee  to  resort  to  any  or  all  the  remedies  he  had  before. 
Such  a  purchase  will  not  render  the  purchaser  a  debtor  of  the 
mortgagee  or  his  assignee,  and  release  the  mortgagor,  either 
at  law  or  in  equity.  Therefore,  the  mortgagor  has  no  right 
in  equity  to  compel  such  purchaser  to  redeem  from  his  mort- 
gage or  lose  his  debt.  The  mortgage  creditor  may  do  so,  if 
he  chooses,  by  foreclosure. 

In  a  case  where  a  redemption  of  land,  sold  under  a  decree 
of  foreclosure,  was  made  after  the  death  of  the  debtor  by  a 
judgment  creditor,  whose  execution  was  void,  and  who  had 
no  right  to  levy  and  sell  under  the  same,  and  the  redemption 
money  was  accepted  and  acted  upon  as  valid  by  the  prior 
creditor,  the  court  held  that  the  acceptance  operated  to  extin- 
guish the  prior  sale,  the  same  as  if  the  redemption  had  been 
properly  made,  and  re-invested  the  heirs-at-law  of  the  deceased 
debtor  with  the  title  to  the  land,  and  that  they  were  not 
precluded  from  contesting  the  title  claim  by  such  redeeming 
creditor,  by  sale  under  his  execution.^' 

§  1060.  Payment  after  breach  of  condition — Effect. — 

The  general  rule  is  that  where  the  mortgagor  pays  the  debt 
after  the  law  day  has  expired,  he  will  not  be  entitled  to  main- 
tain an  action  at  law  against  the  mortgagee  for  the  posses- 
sion,®^ because  such  payment  of  the  mortgage,  after  forfeiture, 
does  not  divest  the  mortgagee  of  his  legal  estate;^  it  simplv 
gives  to  the  mortgagor  a  right  of  action  in  equity  to  compel  a 
reconveyance.^  But  receiving  in  whole  or  in  part  the  mort- 
gage debt  included  in  a  decree  of  foreclosure  after  it  has  be- 

^■^68  III.  92.  ^  Cross    v.    Robinson,    21    Conn. 

98  Clingman  v.  Hopkie,  78  111.  152.  387. 

9^ Doton  V.  Russell,  17  Conn.  146,  ^Dudley  v.    Caldwell,    19    Conn. 

154;  Smith  v.  Vincent,  15  Conn.  1,  228;  Smith  v.   Vincent,  15  Conn.  1, 

38  Am.  Dec.  52.  38  Am.  Dec.  52. 


§   1061] 


REDEMPTION. 


1457 


come  absolute,  will  let  in  the  mortgagor  to  redeem,  because 
this  will  constitute  a  waiver  on  the  part  of  the  mortgagee  of 
existing  forfeitures.^ 

§  1061.  Estoppel  in  pais. — A  mortgagor,  and  those 
claiming  under  him,  may  be  estopped  by  their  own  acts  from 
exercising  the  right  of  redemption  from  a  person  who  has 
purchased  the  land  on  the  strength  of  their  acts  or  words.* 
Thus,  the  supreme  judicial  court  of  Massachusetts,  in  the  case 
of  Fay  V.  Valentine,*  say  that  a  subsequent  mortgagee  will  be 
esetopped  to  redeem  the  premises  as  against  a  prior  mort- 
gagee's assignee,  whom  the  subsequent  mortgagee  induced  to 
purchase  the  mortgaged  premises  on  the  assurance  that  he 
would  never  redeem  them.  In  discussing  the  question  the  court 
say :  "In  the  case  of  Mocatta  v.  Murgatroyd,^  Lord  Cowper 
decided  that  a  prior  mortgage  should  be  postponed  to  a  subse- 
quent one,  merely  on  the  proof  that  the  prior  mortgagee  was 
a  witness  to  the  subsequent  mortgage."  '     So  far  as  this  goes 


*  Gleason  v.  Whitney,  51  Vt.  552. 
See  post,  §  1070. 

As  to  redemption  after  fore- 
closure, see  post,  chap.  xli. 

^Mansfield  v.  Kilgore,  86  Neb. 
452,  125  N.  W.  1078.  See  Mahaffy 
V.  Paris,  144  Iowa,  220,  24  L.R.A. 
(N.  S.)  840,  122  N.  W.  934.  See 
also  King  v.  King,  215  111.  100,  74 
N.  E.  89.  But  see  Eubanks  v. 
Becton,  158  N.  C.  230.  7Z  S.  E. 
1009;  Rich  v.  Morisey  as  ex'r.  etc. 
149  N.  C.  37,  62  S.  E.  762. 

5  29  Mass.  (12  Pick.)  40,  22  Am. 
Dec.  397. 

6  1  Pr.  Wms.  394. 

'  In  the  case  of  Hudson  v.  Chey- 
tiey,  2  Vern.  150,  a  mother  who, 
being  absolute  owner  of  a  term, 
was  present  at  a  treaty  of  marriage 
of  her  son.  and  heard  him  declare 
that  the  term  was  to  come  to  him 
Mortg.  Vol.  II.— 92. 


on  her  death,  and  did  not  disclos'j 
her  true  interest,  was  compelled  to 
make  good  the  settlement,  and  to 
settle  the  revision  accordingly  after 
her  death. 

In  the  case  of  Manning  v.  Fer- 
rers, 1  Eq.  Cas.  Abr.  357,  the  facts 
were,  that  the  first  son  of  a  tenant 
for  life  who  was  entitled  to  a  re- 
mainder in  tail  on  the  death  of  his 
father,  and  who  knew  that  the 
estate  was  entitled,  nevertheless 
encouraged  a  person  to  take  a  lease 
from  the  father  for  thirty  years, 
and  to  lay  out  considerable  sums  of 
money  in  new  buildings  and  im- 
provements, in  order  to  reap  the 
advantage  thereof  if  he  should  sur- 
vive his  father.  It  was  decided  that 
this  was  such  a  fraud  as  ought  to 
be  discountenanced  in  a  court  of 
equity;  and  it  was  accordingly  de- 


1458 


MORTGAGE    FORECLOSURES. 


[§   1061 


to  impute  notice  to  a  witness  of  the  contents  of  a  deed  merely 
from  his  attestation,  it  must  be  considered  as  very  properly 
overruled  by  Lord  Hardwick  in  the  case  of  Wedford  v.  Beeze- 
ly,*  and  again  by  Lord  Thurlow  in  Beckett  v.  Cordley ;  ^  but  in 
none  of  these  cases  was  it  doubted,  that  if  a  mortgagee  has  ac- 
tual knowledge  of  the  contents  of  a  subsequent  mortgage,  and 
nevertheless  stands  by  and  witnesses  the  execution  of  the 
second  mortgage  without  disclosing  his  prior  incumbrance, 
this  would  be  such  a  fraud  in  him  as  would  authorize  a  court  of 
equity  to  postpone  such  prior  incumbrance,  so  as  to  let  in  the 
subsequent  mortgage.  And  the  supreme  court  of  Vermont, 
in  the  case  of  Wright  v.  Whitehead,^"  say  that  a  mortgagor 
who  has  joined  with  the  mortgagee  in  selling  the  mortgaged 


creed  that  the  lessee  should  not  be 
disturbed  for  the  residue  of  the 
term  that  remained  unexpired 
after  the  father's  death. 

In  the  case  of  Hobbs  v.  Norton, 
1  Vern.  136,  it  appeared  that  the 
defendant  was  issue  in  tail  under  a 
settlement,  and  that  he  encouraged 
the  plaintiff  to  purchase  an  annuity 
of  the  younger  son  given  by  the 
father's  will,  though  it  did  not  ap- 
pear that  the  defendant  had  any 
notice  of  the  settlement  at  the  time 
when  he  encouraged  the  plaintiff  to 
proceed  in  the  purchase ;  yet  it  was 
decreed  that  the  annuity  should  be 
confirmed  to  the  plaintiff,  merely 
on  the  encouragement  given. 

In  Raw  V.  Pote,  2  Vern.  239, 
Prec.  Ch.  35,  a  widow,  who  had  a 
jointure  settled  on  her  for  life  by 
her  husband,  was  relieved  against 
an  entail  fraudulently  concealed 
and  then  set  up  against  her  by  the 
defendant,  who  was  privy  to  the 
entail,  and  who  engrossed  the 
jointure  deed  in  her  favor. 

In  Peter  v.  Russell,  2  Vern.  726, 
it  was  decided,  that  if  a  mortgagee 


of  a  leasehold  estate  lends  the 
original  lease  to  the  mortgagor  for 
the  purpose  of  enabling  him  to  take 
up  more  money,  which  is  accord- 
ingly done,  and  he  executes  a  sec- 
ond mortgage,  the  first  mortgage 
should  be  postponed  to  the  second, 
it  being  considered  that  the  first 
mortgagee  was  accessory  to  the 
fraud.  Otherwise,  if  he  was  not 
privy  to  the  subsequent  loan,  but 
innocently  lent  the  lease  to  the 
mortgagor. 

Where  a  man,  with  knowledge  of 
his  title,  stands  by,  and  either  en- 
courages another  to  purchase  or 
does  not  disclose  his  title,  he  will 
not  be  allowed  in  a  court  of  equity 
to  set  up  his  claim  against  the  pur- 
chaser. Savage  v.  Foster,  9  Mod. 
35;  Niven  v.  Belknap,  2  John  (N. 
Y.)  573;  Evans  v.  Bicknell,  6  Ves. 
190;  Bac.  Abr.  Fraud,  B.  A  similar 
principle  is  laid  down  in  Foster  v. 
Briggs,  3  Mass.  313. 

8  Vas.  Sr.  6. 

9  1  Bro.  C.  C.  357. 

10  14  Vt.  268. 


§    1063]  REDEMPTION.  1459 

premises  at  public  auction,  and  receives  the  purchase  money 
from  one  who  bought  in  good  faith,  and  has  made  valuable 
improvements,  will  be  estopped  by  his  acts  from  exercising 
the  right  of  redemption. 

§  1062.  Conveyance  by  mortgagee. — The  general  rule 
is  that  a  purchaser  of  mortgaged  premises  from  a  mortgagee, 
pending  a  suit  to  redeem,  will  hold  subject  to  the  equities 
of  the  parties  seeking  the  redemption."  And  for  this  reason 
it  is  thought  that  the  conveyance  of  mortgaged  premises  by 
the  mortgagee  do  not  stand  in  the  way  of  redemption  by  the 
mortgagor  or  his  privies  from  a  sale  to  the  mortgagee  under 
a  power  in  the  mortgage,  where  such  conveyances  are  without 
any  consideration  and  are  fraudulent  as  against  the  mortgagor 
or  such  privies. ^^  The  supreme  judicial  court  of  Maine,  in 
the  case  of  Linnell  v.  Lyford,^^  say  that  where  the  equity 
of  redemption  is  apparently  destroyed  by  the  mortgagee,  by 
his  conveying  an  indefeasible  title  to  the  premises  to  a  bona 
fide  purchaser,  a  court  of  equity  will  treat  such  mortgagee  as 
a  constructive  trustee  for  the  balance  in  his  hands  after  de- 
ducting from  the  price  for  which  the  land  was  sold  the  amount 
for  which  the  defendant  held  it  as  security. 

§  1063.  Two  or  more  mortgages  on  one  tract — Redeem- 
ing from  one. — In  those  cases  where  two  or  more  mort- 
gages are  given  upon  one  contract  of  land  to  secure  the  same 
debt  as  a  part  of  one  and  the  same  transaction,  the  mortgagor 
has  no  right  to  separate  the  transaction,  and  will  be  required 
to  redeem  from  both  mortgages.^*    And  where  one  purchases 

^^ Roberts  v.  Fleming,  53  111.  196.       personal    property    to     secure    the 

12  Lovelace    v.    Hutchinson,    106       same  debt,  which  deeds  of  the  land 
Ala.  417,  17  So.  623.  were   taken   to   secure.     The  court 

13  72  Me.  280.  said  the  complainant  could  redeem 
1*  In    Stanchfield   v.   Milliken,   71       from   the   whole   or  none;    he   had 

Me.  567,  certain  mill  fixtures,  which       no  right  to  separate  the  transaction, 
were   afterwards   incorporated   into  Stanchfield   v.   Milliken,    71     Me. 

the  real  estate,  were  mortgaged  as       567;  Wells  v.  Tucker.  57  Vt.  223. 


1460  MORTGAGE    FORECLOSURES.  [§    1064 

land  subject  to  two  mortgages,  each  on  an  undivided  half  of 
the  estate,  agreeing  as  part  of  the  consideration  to  pay  these 
mortgages,  he  cannot  maintain  a  bill  to  redeem  one  of  them  so 
as  to  hold  an  undivided  half  of  the  land  free,  without  redeem- 
ing both." 

But  in  those  cases  where  the  same  person  holds  as  as- 
signee two  mortgages  of  real  estate,  the  purchaser  of  the  equity 
of  redemption  may  maintain  a  bill  to  redeem  from  only  one 
of  them;  nor  will  the  expiration  of  the  statutory  term  of  fore- 
closure upon  the  other  mortgage  prevent  a  decree  in  his  favor 
as  to  the  mortgage  he  seeks  to  redeem. ^^ 

§  1064,  Separate  mortgages  on  separate  tracts — Re- 
deeming from  one. — The  general  rule  is  that  where  several 
mortgages  of  different  estates  by  the  same  mortgagor  have 
been  given  to  or  become  united  in  one  person,  and  the  equity 
of  redemption  is  afterwards  conveyed  to  different  individuals 
by  the  mortgagor,  or  levied  upon  and  sold  under  execution, 
no  purchaser  can  redeem  his  estate  without  redeeming  all  the 
mortgages,  no  matter  whether  he  purchased  before  or  after 
the  union  in  the  plaintiff,  or  whether  he  did  or  did  not  have  no- 
tice of  such  mortgages.  In  such  a  case  the  first  purchaser  of 
part  of  the  estate  in  point  of  time  has  the  first  right  to  redeem 
from  all  the  mortgages,  and,  in  case  of  his  default,  the  subse- 
quent purchasers  have  successively  rights  to  redeem.".     In  a 

^5  I'Vclls  V.  Tucker,  57  Vt.  223.  was    entitled    to     redeem    both    by 

16  Milliken  v.  Bailey,  61  Me.  316.  paying    the    whole    mortgage    debt, 

1''^  Fj-anklin    V.     Gorham,    2    Day  but  could  not  redeem  the  piece  set 

(Conn.)     142,    2    Am.      Dec.     86;  off  to  him  on  execution,  by  paying 

Beevar  v.  Luck,  L.  R.  4  Eq.  537.  such  proportion  of  the  whole  mort- 

In  the  case  of  Franklin  v.  Gor-  gaged  premises. 
ham,  supra,  a  mortgagor,  to  secure  The  English  rule  is  thought  to  be 
a  debt  due  the  mortgagee,  mort-  different.  In  the  recent  case  of 
gaged  to  him  two  pieces  of  land  by  Mintcr  v.  Carr  (C.  A.),  1894,  3  Ch. 
separate  deeds;  a  creditor  of  the  498,  it  is  said  the  holder  of  first 
mortgagor  levied  an  execution  on  mortgages  on  two  properties  be- 
the  latter's  right  in  one  of  the  longing  to  the  same  mortgagor  can- 
pieces  ;  it  was  held  that  the  creditor  not  consolidate  them  so  as  to  pre- 


§     1065]  REDEMPTION.  1461 

case,  however,  where  A  advanced  money  to  B  to  redeem  cer- 
tain land,  and  took  a  mortgage  on  it  as  security,  together  wath 
a  mortgage  on  other  land  which  was  found  to  be  incumbered 
with  hens,  and  as  an  indemnity  against  such  hens.  B  allowed  A 
to  hold  a  third  piece  of  land,  which  A  already  held  in  his  own 
name,  but  had  purchased  with  B's  money,  the  court  held  that 
B  might  redeem  this  third  lot  by  payment  of  the  liens  only, 
and  that  said  lot  was  not  liable  generally  for  all  of  B's  indebt- 
edness." 

§  1065.  Redemption  by  part  owner — Extent  of  right. — 
The  rule  laid  down  in  the  last  two  preceding  sections  which 
requires  that  the  whole  of  the  mortgage  debt  or  debts,  be 
paid  on  redemption,  is  for  the  protection  of  the  mortgagee. 
He  may  waive  his  right  to  enforce  redemption  for  the  whole 
amount  and  accept  a  proportionate  amount  of  the  mortgage 
debt  or  debts  from  any  one  entitled  to  redeem,  and  by  his 
voluntary  release  may  discharge  his  lien  from  any  portion 
of  the  mortgaged  premises  without  jeopardizing  his  lien  for 
the  balance,  by  deducting  from  his  claims  the  amoimt  which, 
under  the  special  circumstances,  is  just  and  equitable. ^^.  In 
those  cases  where  the  mortgagee  has  equities  which  require 

vent  a  purchaser    of    one    of    the  Mass.  464;    Wiug   v.  Hay  ford,    124 

properties  under  a  second  mortgage  Mass.  249;  Draper    v.    Mann,    117 

from  redeeming  it  alone,  where  the  Mass.  439 ;   Parkham  v.    Welch.  36 

first  mortgages  were  not  united  in  Mass.    (19   Pick.)     231;    Benton    v. 

the  same  ownership  until  after  the  Nicoll,    24     Minn.     221;      Hill     \. 

giving  of  the  second  mortgage.  Hoivell.  3  N.  J.  Eq.  (10  Stew.)  25; 

"^^  Hardin   v.   Eames,   5    111.    App.  Logan  Assoc,  v.  Braghen,  27  N.  J. 

153.  Eq.    (12  C.   E.   Gr.)   98;   Mount  v. 

19  See    Birnie    v.    Nain,    29    Ark.  Potts,  23  N.  J.  Eq.    (8  C.  E.  Gr.) 


591 ;  Meacham  v.  Steel,  93  111.  135 
Ilawke  v.  Snydaker,  86  111.  197 
Stewart  v.  McMahan,  94  Ind.  389 
Wolf  V.  Smith,  36  Iowa,  454 
Douglas  v.   Bishop,  27   Iowa,   214 


188;  Trustees  of  Union  College  v. 
Wheeler,  61  N.  Y.  88;  Stuyvesant 
v.  Hall,  2  Barb.  Ch.  (N.  Y.)  151; 
Guion  V.  Knapp.  6  Paige,  Ch.  (N. 
Y.)  35.  29  Am.    Dec.   741;   Hozvard 


Gibson  v.  McCormick,  10  Gill  &  J.  Ins.  Co.  v.  Holsey.  4  Sandf.  565, 
(Md.)  65;  Bank  v.  Thayer.  136  aff'd  8  N.  Y.  271,"  59  Am.  Dec.  478 ; 
Mass.    459;    Clark   v.    Fontain,    135       Martin's  Appeal.  97  Pa.  St.  85. 


1462  MORTGAGE    FORECLOSURES.  [§    1066 

for  their  full  protection  that  he  shall  resist  redemption  from 
any  portion  of  the  estate,  the  balance  of  the  estate  may  be 
compelled  to  contribute  its  equitable  share;  or  the  mortgai^ee 
may  defeat  the  attempt  to  redeem  at  his  election.  Thus  where 
the  mortgagee  by  grant  or  estoppel  holds  an  interest  in  the 
equity  of  redemption ;  or  where  several  persons  are  entitled  to 
redeem,  but  some  are  barred  by  the  statute  of  limitations,  the 
owners  of  the  remaining  equity,  or  the  persons  whose  right  is 
not  barred,  may  redeem  their  shares  by  paying  their  respective 
proportions  of  the  debt  secured  by  the  mortgage.^"  And  where 
the  mortgagee  or  holder  of  the  mortgage  has  foreclosed  on  a 
portion  of  the  premises  and  acquired  the  title  thereto,  he  may 
require  the  owners  of  the  equity  of  redemption  in  the  remain- 
ing portion  to  redeem  by  paying  the  amount  of  the  debt  with 
which  the  remaining  land  is  equitably  chargeable. ^^ 

The  general  rule  under  the  statutes  of  many  of  the  states 
require  the  owner  of  an  undivided  interest  in  land  seeking 
±0  redeem,  to  redeem  the  whole,  and  not  simply  his  interest.^^ 
We  have  already  seen  that  where  a  person  interested  in  the 
mortgaged  property  is  not  made  a  party  his  right  to  redeem  is 
not  extinguished  by  the  action ;  ^^  and  where  such  omitted 
person  is  the  owner  of  a  part  of  the  mortgaged  premises,  he 
is  entitled  to  redeem  his  land  by  paying  a  fair  share  of  the 
mortgage  debt.^^  A  like  rule  applies  to  a  case  where  a  junior 
lienor,  who  has  a  mortgage  on  a  portion  of  the  premises,  is 
not  made  a  party  to  the  proceedings  in  foreclosure.^^ 

§  1066.  Same — Remedy  on. — Where  a  person  having 
an  interest  in  the  whole  or  a  portion  of  the  mortgaged  prem- 

^opogal    V.    Pirro,    17    Abb.    (N.  ^^  Eiceman  v.  Finch,  79  Ind.  511. 

Y.),  Pr.  113,  10  Bosw.  (N.  Y.)  100.  23  See  ai%te,  §  1056. 

21  Dukes  V.  Turner,  44  Iowa,  575 ;  24  Green  v.  Dixon,  9  Wis.  532. 

Dooley   v.   Potter,    140    Mass.    49 ;  25  Qrattan    v.    Wiggins,    23     Cal. 

George     v.     Wood,    93    Mass.    (11  16;  Fink  v.  Murphy,  21  Cal.  108,  81 

Allen)  41;  Fogal  v.  Pirro,  17  Abb.  Am.  Dec.  149;  Kirkham  v.  Dupont, 

(N.  Y.)  Pr.  113,  10  Bosw.  (N.  Y.)  14   Cal.   559;   Martin  v.  Kelley,  59 

100.  Miss.  652. 


1067] 


REDEMPTION. 


1463 


ises  is  compelled  to  redeem  the  entire  estate  to  protect  that 
interest,  he  will  be  subrogated  to  the  rights  of  the  mort- 
gagor,^^ and  may  enforce  his  claim  against  those  who  ought 
to  contribute  ratably,^''^  and  have  the  mortgaged  debt  appor- 
tioned as  justice  may  require.^ 

§  1067.  Statutes  regulating  redemption. — The  time 
within  which  a  redemption  must  be  made  in  mortgage  fore- 
closures is  regulated  by  statute  in  the  various  states.^^  After 
a  sale  under  a  foreclosure  decree,  and  the  expiration  of  the 
statutory  time  for  redemption,  a  bill  in  equity  cannot  be  main- 
tained to  reverse  the  decree.^" 

In  the  case  of  White  v.  Crow,^^  however,  where  A  had  the 
right  to  redeem  certain  property  from  the  lien  of  several 
judgments,  and  he  redeemed  from  all  but  one,  the  validity  of 
which  he  disputed,  and  the  time  ran  by  within  which,  under 
the  statute,  he  should  have  redeemed  from  that.  The  court 
held  that  he  should  be  allowed  to  redeem  or  to  have  returned 
to  him  the  amount  paid  for  redeeming  the  other  judgments 
It  is  said  the  case  of  Knox  v.  Armstead  ^^  that  a  power  in  a 


26  See  ante,  §  827. 

2'''  See  post,  chap.  xliv. 

^^  Andrews  v.  Hubbard,  SO  Conn. 
351 ;  Lyons  v.  Robbins,  45  Conn. 
513;  Smith  v.  Kelly,  27  Me.  237,  46 
Am.  Dec.  595;  Allen  v.  Clerk,  34 
Mass.  (17  Pick.)  47;  Gibson  v. 
Crehore,  22  Mass.  (5  Pick.)  152; 
Tillinghast  v.  Frye,  1  R.  I.  53. 

29  See  Bartleson  v.  Munson,  105 
Minn.  348,  117  N.  W.  512. 

In  Arkansas  there  is  no  right  of 
redemption  from  a  sale  under  a 
deed  of  trust  executed  prior  to  the 
Act  of  March  17,  1879,  (Mansf. 
Dig.  §  4759)  providing  for  the  re- 
demption of  property  from  mort- 
gage sales.  Hud  gins  v.  Morrow,  47 
Ark.  515. 


In  Nevada  there  is  no  right  of 
redemption  from  a  purchaser  at  a 
foreclosure  sale.  That  right  only 
exists  for  a  reasonable  time  after 
breach  as  against  the  mortgagee, 
who  has  not  sold  the  property. 
And  the  fact  that  the  purchaser 
knows  that  his  vendor  is  only  a 
mortgagee,  makes  no  difference  as 
to  the  character  of  title  acquired  by 
the  purchase.  Bryant  v.  Carson 
River  Lumbering  Co.  3  Nev.  313, 
93  Am.  Dec.  403. 

^^Burley  v.  Flint,  105  U.  S.  247, 
26  L.  ed.  986. 

31  17   Fed.  98. 

32  87  Ala.  511,  13  Am.  St.  Rep. 
65,  5  L.R.A.  297,  6  So.  311. 


1464  MORTGAGE    FORECLOSURES.  [§    1068 

mortgage  giving  the  mortgagee  the  right  to  purchase  as  if  lie 
were  not  a  party,  when  exercised  without  fraud  or  oppression, 
deprives  the  mortgagor  of  the  right  to  redeem.  The  supreme 
court  of  Illinois,  in  the  case  of  Anderson  v.  Olinroden,^^  say 
that  the  foreclosure  of  a  mortgage  by  a  pledgee  of  it  as  col- 
lateral security,  to  which  the  mortgagee  is  made  a  party,  but 
in  which  he  fails  to  appear  because  of  an  alleged  mistake  as 
to  the  land  involved;  the  rendering  of  a  decree  awarding  a 
sale,  allowing  the  pledgee  or  any  party  to  the  suit  to  become  a 
purchaser,  and  ordering  that  in  case  the  premises  are  not 
redeemed  within  fifteen  months,  all  the  defendants  be  barred 
of  all  right  and  equity  of  redemption  therein;  a  purchase  by 
the  pledgee;  and  the  lapse  of  the  fifteen  months,  cut  off  all 
right  and  equity  of  redemption  of  the  mortgagee  in  the  prem- 
ises. 

In  Jackson  v.  Lawrence.'*  where  the  debtor  executed  a 
deed  absolute  in  terms  to  his  creditor,  with  the  verbal  agree- 
ment that  it  was  to  secure  a  note,  and  that,  if  the  note  was 
not  paid  at  maturity,  the  creditor  should  be  authorized  to  sell 
the  land,  a  bo:ia  fide  purchaser  of  the  land  on  a  sale  by  the 
creditor  after  default,  who  paid  just  the  amount  due  on  the 
note,  took  the  land  free  from  all  rights  of  creditors  of  the 
first  grantor  who  levied  an  attachment  on  the  land  prior  to 
the  sale.  Such  attaching  creditor  of  the  mortgagee  has  no 
right  of  redemption. 

§  1068.  Same — Designating  a  shorter  time. — Where 
the  statute  prescribes  the  period  within  which  a  redemption 
may  be  made  after  a  foreclosure  sale,  the  mortgagor  and  those 
claiming  under  him  are  entitled  to  the  last  hour  of  the  last 
day  in  which  to  make  redemption.  Thus  the  supreme  court 
of  Illinois,  in  the  case  of  Hollingsworth  v.  Koon,'*  hold  that 

33  145  111.  168,  34  N.  E.  55,  aff'g  35  n;  m  511^  g  n.  e.  193,  6  Id, 
44  111.   App.  294.  148. 

34  117  U.  S.  697.  29  L.  ed.  1024, 
6  Sup.  Ct.  Rep.  915. 


§     1069]  REDEMPTION.  1465 

it  is  error  to  direct  the  dismissal  of  a  bill  to  redeem  if  the 
plaintiff  fail  to  pay  within  three  months,  saying  that  the  full 
statutory  period  should  be  allowed.  And  the  supreme  court 
of  Minnesota,  in  the  case  of  Hollingsworth  v.  Campbell,^^  say 
the  provisions  of  the  statute  of  that  state "  declaring  that 
"in  case  of  strict  foreclosure  no  final  decree  of  foreclosure 
shall  be  rendered  until  the  lapse  of  one  year  after  the  judg- 
ment adjudging  the  amount  due  on  such  mortgage,"  applies 
to  the  judgment  in  an  action  to  redeem,  so  that  it  is  erroneous 
if  it  limits  the  time  for  redemption  to  a  period  less  than  one 
year  from  the  date  of  rendering  the  judgment. 

§  1069.  Same — Filing  deed  or  certificate  under. — It  is 

thought  in  those  cases  where  the  statute  governing  the  fore- 
closure of  mortgages  requires  the  deed  given  by  the  sheriff 
on  sale  of  the  premises  to  be  deposited  with  the  register  of 
deeds,  and  then  declares  that  unless  the  premises  are  re- 
deemed within  the  time  provided  by  the  statute  the  deed  shall 
thereupon  become  operative,  and  may  be  recorded,  and  shall 
vest  in  the  grantee  of  all  the  right  and  title  that  the  mort- 
gagor had ;  should  redemption  not  be  made  within  a  year  from 
such  sale  and  deposit  of  the  deed,  the  right  of  redemption  be- 
comes forever  barred ;  and  it  is  not  necessary  that  the  deed 
be  actually  recorded  in  order  to  bar  the  equity  of  redemption.^* 
Under  the  Michigan  statute  ^^  the  sheriff's  deed  on  foreclo- 
sure at  law  should  be  filed  immediately  after  the  sale;  and 
where  this  is  done  without  unreasonable  delay,  the  year  for 
the  redemption  of  the  premises  runs  from  the  date  of  filing.*" 
Under  the  Minnesota  statute  *^  a  certificate  of  sale  which  con- 

36  28  Minn.  18,  8  N.  W.  873.  39  Mich.  Comp.  L.  §  6920. 

37  Minn.    Gen.    Stat.    1878,   c.   81,  *«  Lilly  v.  Gibbs,  39  Mich.  394. 

§  43.  41  Minn.   Gen.   Stat,  c  81,  tit.  I, 

^^  San  ford   v.    Cahoon,   63    Mich.       §  11. 
223,  20  N.    W.    840.     See    Lilly   v. 
Gibbs,    39    Mich.    394;      Wells    v. 
Atkinson,  24  Minn.  161. 


1466  MORTGAGE    FORECLOSURES.  [§    1070 

tains  the  date  of  the  sale,  and  a  recital  that  the  "premises  are 
subject  to  redemption  within  the  time  and  according  to  the 
statute,"  is  a  sufficient  compliance  with  the  statute  as  to  stat- 
ing the  time  of  redemption.*^ 

§  1070.  Same — Accepting     part     payment — Effect. — It 

has  been  said  that  payments  made  after  foreclosure  by  ad- 
vertisement, and  received  with  the  clear  understanding  that 
the  redemption  is  to  be  completed  by  paying  the  whole  sum 
necessary  for  that  purpose,  within  the  year  allowed  by  the 
statute  will  be  regarded  as  in  affirmance  and  not  in  avoidance 
of  the  sale,  and  for  that  reason  their  acceptance  does  not  oper- 
ate as  a  waiver  of  the  foreclosure.*^ 

The  receiving  of  the  whole  or  a  part  of  the  mortgage  debt 
either  directly  or  indirectly  after  the  time  for  redemption  has 
expired  is  of  itself  sufficient  to  let  in  the  mortgagor  to  re- 
deem.** 

§  1071.  Same — Mortgagor's  possession  during — Con- 
stitutionality of  stattue. — It  has  been  held  that  a  statute, 
providing  the  mortgagor  shall,  upon  payment  of  interest,  re- 
tain possession  of  the  mortgaged  premises  during  the  period 
of  redemption  after  foreclosure,  does  not  impair  the  mort- 
gage contract;  because  it  affects  the  remedy  only.*^  But  this 
doctrine  has  not  proved  entirely  satisfactory  to  the  profession 
and   the  courts.     In   the  case  of   Barnitz   v.   Beverly,*®   the 

^  Wells    V.    Atkinson,    24    Minn.  *'^  In   an   early  case    (Watkins  v. 

161.  Glenn,  55   Kan.  417,  31  L.R.A.  82, 

*^  Cameron   v.   Adams,   31    Mich.  40  Pac.  317),  the  supreme  court  of 

426.    See  ante,  §  1056.  Kansas  held  that  the  Act  in  ques- 

^  Findlay  V.   Longe,  81   Vt.  523,  tion,   in   so   far  as   it    assumed    to 

71  Atl.  829.  operate  retrospectively,  was  in  vio- 

^^  Berthold  v.  Fox,  13  Minn.  501,  lation  of   Section   10,  of  Article  I, 

97  Am.  Dec.  243.  of   the   Federal   Constitution.     The 

46  163  U.  S.  118,  41  L.  ed.  — ,  16  opinion    of    Chief    Justice    Horton, 

Sup.    Ct.    Rep.    1042,    reversing,    55  of    the    Kansas    supreme   court,    in 

Kan.  466,  31  L.R.A.  74;  49  Am.  St.  that  case,  is  a  very  able  and  satis- 

Rep.  257,  42  Pac.  725.  factory  exposition  of  the  law.     A 


§     1071]  REDEMPTION.  1467 

supreme  court  of  the  United  States,  in  reversing-  the  Kansas  *'' 
supreme  court,  held  that  the  Kansas  statute,*^  providing  that 
mortgagors  shall  have  eighteen  months  for  redemption,  with 
full  right  of  possession  during  that  time,  and  forbidding  an- 
other sale  of  the  land  for  any  deficiency  in  the  first  sale,  is 
unconstitutional  as  applied  to  mortgages  executed  before  its 
passage,  because  impairing,  or  tending  to  impair,  the  obli- 
gation of  contracts.  It  is  thought  that  such  decision  has  been 
generally  looked  for  by  a  large  majority  of  the  profession 
throughout  the  Union;  and  the  fact  that  it  is  unanimously 
rendered  by  the  highest  tribunal  in  the  land  will  doubtless  have 
a  salutory  effect. 

The  gist  of  the  argument  in  favor  of  the  constitutionality 
of  such  statutes  is  that  a  redemption  privilege  granted  to  a 
mortgagor  affects  only  the  remedy  and  not  the  right.  Such 
a  contention  is  thought  to  be  fallacious  in  theory  and  con- 
trary to  the  substantial  purport  of  many  decisions  of  the 
supreme  court  of  the  United  States.*^ 

change  in  the  personnel  of  the  purchaser  was  given  actual  posses- 
Bench  having  occurred,  the  ques-  sion  as  soon  as  the  sale  was  con- 
tion  was  again  brought  up  in  firmed  and  the  sheriff's  deed  is- 
Beverly  v.  Barnitc,  55  Kan.  466,  sued.  Thereafter  the  mortgagor  or 
31  L.R.A.  74,  42  Pac.  725,  and  it  owner  had  no  possession,  title  or 
was  held  that  the  statute  was  in-  right  in  any  way  to  the  premises. 
tended  to  be  retroactive,  and  that  "Under  the  new  law  the  mort- 
it  was  not  unconstitutional.  gagor  shall  have  eighteen  months 
Numerous  decisions  of  the  Federal  from  the  date  of  sale  within  which 
courts  are  cited  in  the  opinions  in  to  redeem,  and  in  the  meantime  the 
both  the  cases  in  the  supreme  court  rents,  issues  and  profits,  exccpt- 
of  Kansas.  ing  what  is  necessary  to  keep 
*8  Kan.  L.  1893,  c.  109.  up  repairs,  shall  go  to  the 
*9  In  the  last  decision  on  the  mortgagor  or  the  owner  of  the 
question  by  the  United  States  legal  title,  who  in  the  meantime 
Supreme  Court  the  opinion  by  Mr.  shall  be  entitled  to  the  possession 
Justice  Shiras,  after  reviewing  the  of  the  property.  The  redemption 
earlier  cases,  continues  as  'follows :  payment  is  to  consist,  not  of  the 
"Under  the  law,  as  it  existed  at  mortgage  debt,  interest  and  costs, 
the  time  when  the  mortgage  was  but  of  the  amount  paid  by  the  pur- 
made,  after  a  foreclosure  and  sale  chaser,  with  interest,  costs  and 
of     the     mortgaged    premises,    the  taxes.      In    other    words,     the     act 


1468 


MORTGAGE    FORECLOSURES. 


[§   1072 


§  1072.  Same — Possession  by  purchaser  during — Ac- 
counting.— In  the  case  of  Dailey  v.  Abbott,*"  it  is  held 
that  where  the  purchaser  takes  possession  before  the  period 


carves  out  for  the  mortgagor  or  the 
owner  of  the  mortgaged  property 
an  estate  of  several  months  more 
than  was  obtainable  by  him  imder 
the  former  law,  with  full  right  of 
possession,  and  without  paying  rent 
or  accounting  for  profits  in  the 
meantime.  What  is  sold  under  this 
act  is  not  the  estate  pledged  (de- 
scribed in  the  mortgage  as  a  good 
and  indefeasible  estate  of  inherit- 
ance, free  and  clear  of  all  incum- 
brance), but  a  remainder — an  estate 
subject  to  the  possession,  for 
eighteen  months,  of  another  per- 
son, who  is  under  no  obligation  to 
pay  rent  or  to  account  for  profits. 
The  twenty-third  section  of  the  act 
should  not  be  overlooked,  provid- 
ing that  real  estate  once  sold  upon 
order  of  sale,  special  execution,  or 
general  execution  shall  not  again 
be  liable  for  sale  for  any  balance 
due  upon  the  judgment  or  decree, 
under  which  the  same  is  sold  or 
any  other  judgment  or  lien  inferior 
thereto,  and  under  which  the  holder 
of  such  lien  had  a  right  to  redeem. 
Obviously,  this  scheme  of  fore- 
closure renders  it  necessary  for  the 
mortgagee  to  himself  bid,  or  pro- 
cure others  to  bid,  the  entire 
amount  of  the  mortgage  debt,  and 
thus,  in  effect,  release  the  debtor 
from  his  personal  obligation. 

"We,  of  course,  have  nothing  to 
do  with  the  fairness  or  the  policy 
of  such  enactments  as  respects 
those  who  choose  to  contract  in 
view  of  them.  But  it  seems  im- 
possible to  resist  the  conviction 
that  such  a  change  in  the  law  is  not 


merely  the  substitution  of  one 
remedy  for  another,  but  is  a  sub- 
stantial impairment  of  the  rights  of 
the  mortgagee  as  expressed  in  the 
contract.  Where  in  a  mortgage,  an 
entire  estate  is  pledged  for  the 
payment  of  a  debt,  with  right  to 
sell  the  mortgaged  premises  free 
from  redemption,  can  that  be  valid 
legislation  which  would  seek  to 
substitute  a  right  to  sell  the  prem- 
ises subject  to  an  estate  or  right  of 
possession  in  the  debtor  or  his 
alienees    for   eighteen   months? 

"The  popular  sentiment  which 
led  to  the  passage  of  the  act  in 
question  in  Kansas,  and  which,  un 
fortunately,  was  strong  enough  to 
coerce  the  supreme  court  of  that 
state  to  recede  from  the  formerly 
sound  position  it  had  taken,  is 
manifested  on  a  wider  scale  in  the 
present  determined  agitation  to  de- 
base the  standard  of  value,  by  mak- 
ing silver  dollars  of  a  fiat  weight 
and  quality  the  legal  equivalent  of 
gold  dollars.  Unfortunately  there 
would  be  no  remedy  in  the  courts 
for  Federal  legislation  of  such 
character.  Legal  Tender  Cases.  79 
U.  S.  (12  Wall.)  457,  20  L.  ed.  287; 
Juiliard  v.  Greenman,  110  U.  S.  421, 
28  L.  ed.  204,  4  Sup.  Ct.  Rep.  122.  It 
is,  however  a  source  of  considera 
ble  satisfaction  that  the  present  de- 
cision of  the  supreme  court  by  r. 
unanimous  vote  indicates  a  disposi- 
tion to  jealously  effectuate  sub- 
stantial rights  of  contract  in  so  far 
as  they  are  the  subject  of  consti 
tutional  protection." 

50  40  .Ark.  275. 


§    1074]  REDEMPTION.  1469 

of  redemption  has  expired,  he  is  accountable  for  the  rents 
and  profits.  The  court  say :  "As  long  as  the  right  to  redeem 
exists  the  mortgagor  is  entitled  to  rent,  if  the  mortgagee  is 
in  possession,  taking  the  rents  and  profits.  The  statute  pro- 
longs the  mortgagor's  right  of  redemption  for  one  year  after 
the  sale.  The  purchaser  at  the  sale  takes  the  place  of  the 
mortgagee,  and  if  he  takes  possession  of  the  land  before  the 
period  for  redemption  has  expired,  there  is  no  good  reason 
why  he  should  not  be  accountable  for  the  rents  and  profits. 
On  redemption  he  gets  the  money  with  interest.  His  vendor 
occupies  no  better  position."  *^ 

§  1073.  Same — After     foreclosure — By      creditor. — In 

some  of  the  States,  as  in  Minnesota,^'^  under  statutory  pro- 
visions, where  on  redemption  of  mortgaged  property  sold 
on  foreclosure  under  a  power  of  sale  is  made  within  twelve 
months  by  the  mortgagor,  his  heirs,  executors  and  assigns, 
the  senior  creditor  having  a  lien  on  the  real  estate,  or  some 
part  thereof,  subsequent  to  the  mortgage,  may  redeem  within 
a  specified  time  after  the  expiration  of  the  said  twelve  months, 
and  each  subsequent  creditor  having  such  lien  may  likewise 
redeem.  Under  such  a  statute  a  creditor  of  the  grantee  of  the 
equity  of  redemption,  having  a  lien  on  such  property,  may 
redeem  as  well  as  a  creditor  of  the  mortgagor." 

§  1074.  Same — Same — By  junior  lienor. — Where  junior 
lien  holders  are  made  parties  to  a  suit  to  foreclose  a  prior 
lien,  their  equitable  right  to  redeem  will  be  barred,  although 
still  redemptioners  under  the  statute ;  ^*  but  where  not  made 
a  party  to  the  foreclosure  they  are  entitled  to  redeem  by  pay- 
ing what  is  justly  due  the  purchaser,  and  may  do  so  even 
after  the  statutory  time,  and  demand  an  accounting  from  a 

61  Citing  2  Jones  on  Mortg.  §  ^^  Hospes  v.  Sanborn,  28  Minn. 
1118.                                                              48. 

62  Minn.  Gen.  St.  1878,  c.  81,  §3.  ^^  Prink  v.  Murphy,  21   Cal.   108. 

81  Am.  Dec.  149. 


1470  MORTGAGE    FORECLOSURES.  [§    1075 

purchaser  in  possession ;  "  for  the  title  of  a  purchaser  at  a 
mortgage  foreclosure  sale,  although  relating  back  to  the  mort- 
gage, as  against  the  parties  to  the  foreclosure,  does  not  cut 
off  the  title  of  a  subsequent  purchaser  of  the  lien  of  a  subse- 
quent incumbrancer  by  a  recorded  conveyance,  who  was  not 
a  party,  so  as  to  prevent  a  redemption  by  such  purchaser  or 
incumbrancer.^^  But  it  has  been  said  that  the  holder  of  a 
junior  judgment  not  indexed  at  the  time  of  the  foreclosure  of 
a  senior  mortgage  cannot  redeem  after  the  statutory  time  for 
redemption  has  expired,  although  he  was  not  made  a  party 
to  the  foreclosure." 

§  1075.  Same — Same — By  assignee  of  junior  lienor. — 
A  junior  lienor  not  made  a  party  to  an  action  to  foreclose 
a  prior  mortgage  can  redeem  after  the  statutory  period  fixed 
therefor;^'  but  it  has  been  said  that  the  assignee  of  a  junior 
note  and  mortgage,  under  an  unrecorded  assignment,  is  not 
entitled,  after  the  expiration  of  the  statutory  time  for  redemp- 
tion, to  redeem,  in  equity,  on  the  ground  that  he  was  not  made 
a  party  to  the  foreclosure  proceedings  by  the  senior  mort- 
gagee.^^ 

Where  a  senior  mortgagee,  pending  his  suit  to  foreclose, 
acquired  the  junior  mortgage  and  a  sale  was  had  without  the 
complaint  being  amended,  the  court  held  that  the  mortgagee, 
after  the  expiration  of  the  year  allowed  by  statute  for  redemp- 

^^  Randall   v.   Duff,    101    Cal.   82,  ^^  Sterling  Maniif.   Co.  v.  Early, 

35    Pac.    440;    Bunce   v.    West.    62  69  Iowa,  94,  28  N.  W.  458. 

Iowa,  80;  17  N.  W.  179;  Newell  v.  68  See  ante,  §  1074. 

Pennick,  62  Iowa,   123,   17    N.    W.  59  Reel  v.  Wilson,  64  Iowa,  13,  19 

432;  American  Buttonhole  &c.  Co.  N.  W.  814. 

V.  Burlington  Mut.  Loan  Asso.  61  This  is  on  the  same  principle  that 

Iowa,  464,  16  N.  W.  527;  Frink  v.  shuts   out   a   junior    lienor    whose 

Murphy,  21   Cal.  108,  81  Am.  Dec.  claim     is     not     indexed.      Sterling 

149.  Manuf.   Co.  v.  Early,  69  Iowa,  94, 

56  Randall  v.  Duff,  101  Cal.  82,  35  28  N.  W.  458. 
Pac.  440. 


§    1076]  REDEMPTION.  1471 

tion,  was  estopped  from  maintaining  a  suit  to  redeem  or  to 
foreclose  as  junior  mortgagee. ^° 

§  1076.  Same — Same — Conditions  on. — One  who  seeks 
to  redeem  from  a  sale  under  foreclosure  proceedings  to  which 
he  was  not  a  party  on  general  equitable  principles,  after  the 
period  for  statutory  redemption  has  expired,  can  do  so  only 
by  paying  the  mortgage  debt,  without  regard  to  the  amount 
for  which  the  property  sold.^^ 

^0  Gordon  v.  Lee,  102  Ind.  125,  1  For   full  discussion  of  condition 

N.  E.  290.  on  which  redemption  may  be  made 

^^lowa    County    v.    Beeson,    55  after  foreclosure,  see /'o.y/,  §  1139. 
Iowa,  262,  7  N.  W.  597. 


CHAPTER  XXXIX. 

REDEMPTION— WHO   MAY   REDEEM. 

§  1077.  Introductory. 

§  1078.  Administrator  and  executor. 

§  1079.  Annuitant  cannot  redeem. 

§  1080.  Assignee  of  mortgage. 

§  1081.  Same — For    support. 

§  1082.  Assignee  of  mortgagor — Right  to  redeem. 

§  1083.  Assignee  of  note  given  for  land —  May  redeem,  when. 

§  1084.  Attorney  may  redeem,  when. 

§  1085.  Creditors  may  redeem,  when. 

§  1086.  Same — General  creditors. 

§  1087.  Same — Attachment    and   judgment    creditors. 

§   1088.  Same — I'rom  another  creditor. 

§  1089.  Same— Having  lien  on  land. 

§  1090.  Same— Of  husband  on  mortgage  of  wife's  property. 

§  1091.  Defendant  may   redeem. 

§  1092.  Devisees  and  legatees. 

§   1093    Grantee  in  trust  deed — May  not  redeem,  when. 

§  1094.  Grantor  of  lands  mortgaged  to  secure  debt  of  another. 

§  1095.  Grantor  in  deed  absolute  in  form  but  mortgage  in  effect. 

§  1096.  Grantor  in  deed  of  trust. 

§  1097.  Guardians  may  redeem. 

§  1098.  Heirs  of  deceased  mortgagor  may  redeem. 

§  1099.  Holder  of  legal  estate  may  redeem. 

§  1100.  Holder  of  interest  in  mortgaged  premises. 

§  1101.  Holder  of   easement   in   mortgaged   premises. 

§  1102.  Holder  of  part  of   mortgaged  premises. 

§   1103.  Holder  of  bond  to  convey  can  not  redeem. 

§  1104.  Married    woman   mortgaging   own    property    for   husband's   debt 

§  1105.  Mortgagee — Junior  may  redeem. 

§  1106.  Same — Senior  may  not  redeem. 

§  1107.  Mortgagor   may   redeem. 

§   1108.  Mortgagor  and  wife— May  redeem,  when. 

§  1109.  Mortgagors — Joint — Redemption  by. 

§  1110.  Partner  may  redeem. 

§  1111.  Persons  in  interest  not  made  parties. 

§  1112.  Purchaser — Subsequent   purchaser. 

§  1113.  Same — Before  foreclosure. 

1472 


§    1077]  REDEMPTION.  1473 

§  1114.  Same — Pending  foreclosure. 

§  1115.  Same — After  foreclosure. 

§  1116.  Same — At  execution  sale. 

§  1117.  Same — At   foreclosure   sale. 

§  1118.  Same — From  sole  heir. 

§  1119.  Same — From  grantee  of  owner  of  equity  of  redemption. 

§  1120.  Remainderman  and  reversioner. 

§  1121.  Stranger  to   transaction. 

§  1122.  Sub-agent — May  redeem,  when. 

§  1123.  Subsequent  lienor. 

§  1124.  Sureties  may  redeem. 

§  1125.  Tenant  by  the  curtesy. 

§  1126.  Tenant  in  dower. 

§  1127.  Tenant  for  life. 

§  1128.  Tenant  for  years. 

§  1129.  Tenant  in  common. 

§  1130.  Tenant  in  tail. 

§  1131.  Title   insurance  company — May  not  redeem,  when. 

§  1132.  Trustee  of  absent  debtor. 

§  1133.  Wife  joining  in  mortgage. 

§  1134.  Widow  may  redeem. 

§  1077.  Introductory. — We  have  already  seen  *^  that 
the  right  of  redemption  is  an  incident  of  every  mortgage;  but 
this  right  can  be  exercised  only  by  parties  who  hold  the  legal 
estate,  or  have  an  interest  therein. ^^  Anyone  who  has  an 
interest  in  mortgaged  lands,  and  would  suffer  loss  by  a  fore- 

62  See  ante,  §   1029.  a  foreclosure  sale,  not  only  within 

63  See  post,  §  1121.  three  years   from  the  day  of   sale, 
Particularly  is  this  true  in  those      but  within  three  years  after  notice 

cases     where     persons     having    an  thereof  filed  in  the    office    of    the 

interest    are    made    parties    to    the  Register    of    Deeds.     Thompson    v. 

proceedings.     See  post,  §  1111.  Foster,  21   Minn.  319. 

Under   Arkansas   Act,   December  A  person  in  possession  after  full 

15th,    1875,    the   only   persons   who  conveyance  to  a  third  person  under 

can   redeem  the  real    estate    bank-  parol  agreement  that  he  shall  have 

lands  sold  to  the  state,  are  the  own-  a    reconveyance   upon   certain   con- 

ers   of   the    equity    of    redemption  ditions,  will  not  be  entitled  to  re- 

therein.     Davies  v.   Hunt,  39  Ark.  deem  from  a  sale  made  on  the  fore- 

574.  closure  of  a  mort<jage  made  by  his 

Minnesota  Laws,  1860,  c.  87,  §  1,  grantee,  even  though  there  has  been 

authorizes    a    mortgagor,    or    other  a   reconveyance,   but   the   deed   has 

person  claiming  through  or  under  not  yet  been  recorded.     Sprague  v. 

him  as  an  assign,  to  redeem  from  White,  1Z  Iowa,  670,  35  N.  W.  751. 

Mortg.  Vol.  II.— 93. 


1474  MORTGAGE    FORECLOSURES.  [§    1078 

closure,  may  redeem.^*  One  entitled  to  redeem  land  from  the 
holder  of  the  legal  title  on  the  payment  of  a  certain  balance 
due,  has  the  same  right  of  redemption  on  payment  of  that  sum 
as  against  a  mortgagee  of  the  legal  title,  who  was  chargeable 
with  notice  of  his  rights.^* 

To  entitle  one  to  redeem  he  must  show  good  title  in  him- 
self, and  a  legal  right  to  redeem,  before  he  can  effect  the 
discharge  of  the  mortgage,  or  remove  the  prior  incumbrance, 
even  though  he  holds  the  title  of  a  mortgagor.®^  In  keeping 
with  this  doctrine  it  has  been  said  that  a  judgment  declaring 
the  plaintiff  the  owner  of  land  and  entitled  to  redeem  it  from 
the  defendants  as  mortgagees,  cannot  be  entered  where  the 
relation  of  debtor  and  creditor  between  the  parties  has  never 
existed  and  there  is  no  obligation  of  any  character  secured  or 
to  be  secured  by  mortgage,  since  without  such  an  obligation 
there  can  be  no  mortgage." 

As  between  several  persons  entitled  to  redeem,  they  can 
exercise  this  right  according  to  the  priority  of  their  respective 
claims.^' 

The  various  persons  and  interests  who  are  entitled  to  re- 
deem in  mortgage  foreclosures  are  so  numerous  that  it  is 
thought  best  to  treat  each  under  its  proper  head,  arranged 
alphabetically. 

§  1078.  Administrator  and  executor. — An  administra- 
tor or  an  executor  may  have  such  an  interest  in  the  mort- 
gaged premises  as  will   entitle  him  to  redeem   them,   either 

«4See  post,  §  1100.  Upton,  6  Dak.  449,  43  N.  W.  816; 

65  Brooke  v.  Bordner,  125  Pa.  St.  Bigelow    v.    Springfellow,    25    Fla. 

470,   17  Atl.  467,  24  N.  W.   C.  53.  366,  5  So.  816;  Rogers  v.  Heron,92 

^^  Eastman  v.   Batchelder,  36   N.  111.    585;    Dichennan    v.    Lust,    66 

H.   141,  72  Am.  Dec.  295;  Farr  v.  Iowa.  444,  23  N.  W  916;  Spurgin  v. 

Dudley,  21  N.  H.  372.  Adamson,  62  Iowa  661,    18  N.  W. 

^T  Shuts  V.  McLean,  93  Cal.  329,  293;  Moore  v.  Beasom,    44    N.    H. 

25  Pac.  427.  215 ;  Brewer  v.  Hyndman,  18  N.  H. 

68  Haines  v.  Beech,  3  Johns.  Ch.  9.   See  also  Morse  v.  Holland  Trust 

(N.    Y.)    459.     See   Kalscheuer   v.  Co.  184  111.  255,  56  N.  E.  369. 


§    1080]  REDEMPTION.  1475 

before  or  after  sale.^'  Thus  it  has  been  said  where  the  owner 
of  land,  after  executing  a  deed  of  trust  thereon  to  secure  his 
debts,  conveys  it  in  fee  simple,  subject  to  such  trust  deed,  and 
expressly  reserves  a  lien  for  the  purchase  money,  his  adminis- 
trator can  redeem  from  foreclosure  of  the  trust  deed.'" 

The  supreme  court  of  Washington  in  In  re  Clement's 
estate/^  say  that  the  mortgaged  property  included  in  the  resi- 
duary clause  of  a  will  is  not  devised,  within  the  meaning  of 
the  Washington  Statute,'''  providing  for  the  redemption  by 
the  executor  of  any  mortgaged  property  which  has  not  been 
devised. 

§  1079.  Annuitant  cannot  redeem. — An  annuitant  is  a 
person  who  is  entitled  to  an  annuity.  An  annuity  is  simply  a 
yearly  sum  stipulated  to  be  paid  to  another  in  fee  or  for  life 
or  for  years  and  chargeable  only  on  the  person  of  the 
grantor."  An  annuity  is  different  from  a  rent  charge,  in  this, 
— a  rent  charge  is  a  burden  imposed  upon  and  issuing  out  of 
the  lands,  whereas  an  annuity  is  chargeable  only  upon  the 
person  of  the  grantor.'*  It  is  not  an  interest  in  real  property; 
and  where  the  annuity  arises  out  of  lands  the  annuitant  has 
not  an  interest  in  the  mortgaged  lands  entitling  him  to  redeem 
from  the  mortgage.'^ 

§  1080.  Assignee  of  mortgage. — We  shall  hereafter 
see  '^  that  the  assignee  of  a  mortgagor's  interest  in  the  equity 
of  redemption  may  exercise  the  right  of  redemption  under 

^^Enos  V.   Sutherland,   11   Mich.  (X.  Y.)  209,   216;    Anderson's   L. 

538;  Percy  v.   Tate,  91  Tenn.  478,  Diet.  61,  2  Bl.  Com.  40,  1  Bouv.  L. 

19  S.  W.  325;  Merriman  v.  Barton,  Diet.    (18th  ed.)     161,    1    Co.    Litt. 

14  Vt.  501.     Sharpe   v.   Miller,    157  19th  ed.)    144b,  3  Kent  Com.   (13th 

Ala.  299,  47  So.  701.  ed.)  460. 

"^^  Percy  v.  Tate,  91  Tenn.  478,  19  '^'^IVagstaff  v.  Lowerre,  23  Barb. 

S.  W.  323.  (N.  Y.)  209,  217. 

718  Wash.  323,  35   Pac.   1073.  "^^  White    v.    Parnther,    1    Knapp, 

72  Wash.  Code  Proc.  §  1035.  266. 

78  Wagstaff  v.  Lowerre,  23  Barb.  76  See  post,  §  1082. 


1476  MORTGAGE    FORECLOSURES.  [§    1081 

siiTiiliar  circumstances  as  the  mortgagor  himself.  On  the 
same  principle  of  succession  in  interest  the  assignee  of  a  junior 
mortgage  will  have  the  same  rights  as  his  assignor  would  have 
had,  and  the  fact  that  the  assignment  of  the  mortgage  to  the 
holder  was  not  recorded,  does  not  defeat  such  right  of  redemp- 
tion in  those  cases  where  there  is  no  statute  providing  for  the 
recording  of  assignments  of  mortgages  and  making  such 
records  notices,  the  parties  claiming  under  the  assignment  are 
not  guilty  of  laches  in  not  securing  them  to  be  recorded.''^ 

The  supreme  court  of  Wisconsin,  in  the  case  of  Farwell  v. 
Murphy,'''^  say  that  the  assignee  of  a  second  mortgage  may 
maintain  a  bill  for  redemption  against  the  assignee  of  the 
first  mortgage,  or  by  a  bill  of  foreclosure  make  the  assignee 
of  the  first  mortgage  a  party,  and  obtain  the  usual  decree  of 
redemption  against  him. 

The  supreme  court  of  Minnesota,  in  the  case  of  Bovey 
De  Laittre  Lumber  Company  v.  TuckerJ^  say  that  the  assignee 
<of  a  subsequent  mortgage,  under  which  the  mortgagee  has 
filed  notice  of  intention  to  redeem  from  a  sale  under  a  former 
mortgage,  may  redeem  under  such  notice. 

§  1081.  Same — For  support. — The  supreme  judicial 
court  of  Maine,  in  the  case  of  Bryant  v.  Jackson,^"  hold  that 
a  bill  in  equity  to  redeem  real  estate  from  a  mortgage  con- 
ditioned for  the  support  of  the  mortgagees  and  the  survivor 
of  them  during  life,  brought  by  the  assignee  of  the  mort- 
gagor against  the  assignee  of  the  mortgagee,  a  distinct  alle- 
gation that  the  interest  of  the  mortgagor  was  assigned  with 
the  consent  of  the  mortgagee  is  sufficient,  although  it  was 
not  alleged  that  such  consent  was  in  writing.^^  The  supreme 
court  of  Vermont,  in  the  case  of  Austin  v.  Austin,®^  say  that 

"^  Hasselman    v.    McKernan,    SO  ^o  59  Me.  165,  sub  nom.  Bryant  v, 

Ind.  441.  Erskine,  55  Me.  153. 

■78  2  Wis.  533.  81  See   Lovell   v.   Farrington,   50 

79  48  Minn.  223,  50  N.  W.  1038.  Me.  239. 

82  9  Vt.  420. 


§     1082]  REDEMPTION.  1477 

a  mortgage  conditioned  for  the  support  of  the  mortgagee,  ad- 
mits of  compensation,  and  in  those  cases  where  the  mortgagor 
has  conveyed  his  interest,  the  purchaser  will  be  permitted  to 
redeem,  by  making  compensation  for  past  support,  to  be  settled 
by  the  master,  and  paying  a  specific  allowance  for  the  future 
support. 

§  1082.  Assignee    of   mortgagor — Right   to   redeem. — 

The  mortgagor  having  a  right  to  redeem,  and  this  right  being 
inseparably  connected  with  the  title. *^  and  the  right  being  an 
estate  in  the  lands,^*  any  one  purchasing  the  mortgagor's 
right  will  be  entitled  to  redeem  under  the  same  circumstances 
as  the  mortgagor  would  have  been  entitled  to  do  so.*^  It  has 
been  held  that  such  assignee,  where  not  made  a  party  to  the 
foreclosure  proceedings,  will  be  entitled  to  redeem  even  though 
his  deed  is  not  on  record  at  the  time  when  the  decree  of  fore- 
closure is  rendered.*^  In  case  of  an  assignment  by  the  mort- 
gagor of  his  interest  in  the  equity  of  redemption,  and  a  certifi- 
cate of  the  redemption  is  thereafter  issued  in  the  name  of  the 
grantor  to  the  grantee  inures  to  the  latter's  benefit,  where  his 
offer  to  redeem  in  his  own  name  has  been  refused  by  the  sheriff 
under  the  direction  of  the  mortgagee,  who  became  the  pur- 
chaser at  the  foreclosure  sale." 

The  supreme  court  of  Arkansas,  in  the  case  of  Scott  v. 
Henry,*^  say  that  while  it  is  true,  as  a  general  rule,  that  no 

83  See  ante,  §  1029.  Treat,  7  Wis.  263;  Case  114,  3  Atk. 

8*  See  ante,  §  1039.  314;   Cooper  v.  Maurer,   122  Iowa,. 

85  Powers  V.   Andrews,    84    Ala.  321,  98  N.  W.  124.     But  see  Terry 

289.   4   So.   263;   Paulling   v.   Bar-  v.  Allen  Bros.  132  Ala.  657,  32  So. 

ron,    32    Ala.    9;    Scott    v.    Henry,  664. 

13  Ark.  127;  Beach  v.  Shaw,  57  111.  Assignee  of  equity  of  redemption 

17 ;    Gilbert  v.  Hussman,  76   Iowa,  after  the  foreclosure  sale  cannot  re- 

241,  41  N.  W.  3;  Skinner  v.  Miller,  deem.    Lewis   v.    McBride,   57    So. 

5  Litt.  (Ky.)  84;  Wilkins  v.  French,  705.     (Ala.). 
20  Me.  Ill;  Taft   v.    Stetson,    117  »^ Hodson  v.  Treat,  7  Wis.  263. 

Mass.    471;    Brewer    v.    Hyndman,  ^"^  IVilber   v.    Miller    (Oreg.),   37 

18    N.    H.  10;  Hepburn  v.  Kerr,  9  Pac.  827. 
Humph.    (Tenn.)    726;    Hodson   v.  8813  Ark.  127. 


1478  MORTGAGE    FORECLOSURES.  [§    1083 

person  can  come  into  a  court  of  equity  for  a  redemption  of 
a  mortgage  except  he  who  is  entitled  to  the  legal  estate  of 
the  mortgagor,  or  claims  a  subsisting  interest  under  him, 
yet  it  is  equally  well  settled  that  an  assignment  of  a  mort- 
gage vests  in  the  assignee  the  right  to  redeem ;  or  one  to  whom 
a  bona  fide  transfer  of  the  mortgagor's  estate  is  made  may 
redeem  the  property ;  and  the  same  rule  extends  to  persons  hav- 
ing any  substantial  interest  in  the  property.  Succeeding  to  all 
the  rights  of  the  mortgagor  on  the  assignment,  if  there  are 
•circumstances  which  would  induce  the  court  to  decree  a  re- 
demption in  favor  of  the  representatives  of  the  mortgagor, 
the  assignee  who  stands  in  his  place  will  have  the  benefit  of 
it.'^  Thus  it  has  been  said  that  an  assignee  of  the  right  of 
redemption,  in  a  petition  to  redeem,  may  show  a  want  or 
failure  of  consideration  the  same  as  the  mortgagor  himself 
-might  have  done  under  a  similar  petition.^" 

The  supreme  judicial  court  of  Massachusetts,  in  the  case 
of  Taft  V.  Stetson,^^  where  a  mortgagee  entered  upon  land 
to  foreclose  a  mortgage  in  which  the  mortgagor's  wife  had 
not  joined,  but  did  not  take  possession  of  the  house,  nor 
receive  rent  therefor,  the  wife  having  continued  in  possession 
of  the  house  claiming  it  as  a  homestead,  the  court  held  that 
on  a  bill  in  equity  to  redeem,  brought  by  an  assignee  of  the 
mortgagor  an  accounting  for  rents  and  profits  of  the  house 
could  not  be  had. 

The  supreme  court  of  Minnesota,  in  the  case  of  Cuilerier 
V.  Brunelle.^^  say  that  a  junior  mortgagee  is  not  an  "assign" 
of  the  mortgagor,  as  the  word  is  used  in  the  Minnesota 
statute  entitling  assigns  to  redeem  within  a  year  from  the 
foreclosure  of  a  prior  mortgage. 

§  1083.  Assignee  of  note  given  for  land — May  redeem, 
when. — In  the  case  of  Tarbell  v.  Durant,^^  a  part  of  certain 

89  Case  114,  3  Atk.  314.  ^^  117  Mass.  471. 

90  Brewer  v.  Hyndmann,  18  N.  H.  92  ;i7  ]\iinn.  71,  33  N.  W.  123. 
10.                                                                  93  61  vt.  516,  17  Atl.  44. 


•^^     1084]  REDEMPTION.  1479 

land  held  by  one  as  mortgagee,  by  absolute  deed,  was  sold, 
and  the  vendee  mortgaged  it  to  the  original  mortgagee,  agree- 
ing that  the  latter  should  hold  the  mortgage  note  and  mort- 
gage in  place  of  the  land  so  sold.  The  original  owner  of  the 
land  then  assigned  the  note,  subject  to  the  mortgagee's  interest. 
to  orator,  who,  to  protect  his  own  interest,  paid  a  subsequent 
decree  of  foreclosure  procured  by  the  mortgagee  on  the  land 
remaining  unsold  and  the  note,  in  a  suit  to  which  orator  was 
a  party  defendant.  The  court  held  that  the  assignee  of  the 
note  had  a  right  to  redeem  from  the  decree  of  foreclosure  in 
favor  of  the  mortgagee.'* 

§  1084.  Attorney  may  redeem,  when. — An  attorney  be- 
comes a  "creditor '®  having  a  lien,"  within  the  meaning  of 
a  statute  '^  relating  to  the  redemption  of  real  estate,  where  a 
judgment  is  confessed  in  his  favor  for  a  sum  due  upon  a  prior 
contract,  and  the  confession  of  judgment  is  made  for  the  sole 
purpose  of  enabling  him  to  redeem.^'  Thus  in  one  case  the 
owner  of  the  land,  whose  title  was  in  litigation,  made  a  con- 
tract with  his  attorney,  to  convey  to  him,  for  his  services,  one 
third  of  the  land  in  case  he  succeeded  in  recovering  the  land. 
The  attorney  brought  the  litigation  to  a  successful  termi- 
nation, but  in  the  meantime  certain  mortgages  executed  by 
the  owner  having  been  foreclosed,  and  the  time  of  redemption 
about  to  expire,  and  the  owner,  not  being  able  to  redeem,  con- 
fessed judgment  in  favor  of  his  attorney  for  his  services,  for 
an  amount  which  does  not  appear  to  have  been  in  excess  of  the 
value  of  one  third  of  the  land.  The  judgment  was  confessed 
to  enable  the  attorney  to  redeem  the  land,  and  thereby  secure 
compensation  for  his  services.     The  court  held  that  this  con- 

^*The   court  cites   in  support  of  ^'' Atzvater  v.  MancJicstcr  Savings 

this  holding,  Coop.  Eq.  PI.  14;  Bank,  45  Minn.  341,  48  N.  W.  187, 
Hurd  Eq.  PI.  45.  12  L.R.A.  741. 

95  See  post,  %  1089. 

96  Minn.    Gen.    Stat.    1878,   c.   66, 
S  323,  c.  81,  §  16. 


1480  MORTGAGE    FORECLOSURES.  [§    1085 

fession  of  judgment  was  not  a  fraud  on  the  purchaser  at  the 
mortgage  sale.'^ 

§  1085.  Creditors  may  redeem,  when. — All  creditors  of 
the  mortgagor  having  an  interest  in  the  mortgage  premises 
are  entitled  to  redeem  in  the  order  of  the  priority  of  their 
respective  liens.^^  This  right  of  redemption  is  regulated  by 
statute  in  many  of  the  states.  Where  a  senior  creditor's 
right  to  redeem  becomes  vested  under  the  statute,  it  cannot 
be  divested  without  due  process  of  law.'^ 

§  1086.  Same — General  creditors. — The  simple  fact  that 
a  person  is  a  creditor  of  the  mortgagor,  or  owner  of  the 
equity  of  redemption  in  mortgaged  lands,  will  not  entitle 
him  to  redeem  them ;  ^  the  claim  must  be  of  such  a  nature  as 
to  give  him  some  interest  in  the  mortgaged  lands, — a  right 
to  look  to  or  appropriate  them  to  the  payment  of  his  claim, 
— before  he  will  be  entitled  to  redeem.  A  case  which  illus- 
trates this  principle  has  been  decided  by  the  supreme  court 
of  Maryland.  The  court  say  that  a  lien  or  quasi-lien  upon 
the  land  of  a  decedent  given  by  the  statute  of  Maryland,' 
making  such  land  contingently  or  conditionally  liable  to  be 
sold  for  the  payment  of  his  debts,  such  lien  is  not  such  a 
right  or  interest  in  the  real  estate  as  to  give  a  general  creditor 
the  right  to  redeem  from  a  mortgage  upon  such  real  estate, 
and  be  subrogated  to  the  right  of  the  mortgagee.* 

^^  Atwater  V.  Manchester  Savings  Hyndman,   18  N.  H.  9;  Haines  v. 

Bank,  45  Minn.  341,  48  N.  W.  187,  Beach,  3  John.  Ch.   (N.  Y.)   459. 

12  L.R.A.  741.  1  See  Willis  v.  Jelineck,  27  Minn. 

99  See    Kalscheuer    v.     Upton,    6  18,  6  N.  W.  Z7Z. 

Dak.  449,  43  N.  W.  816;   Bigelow  2  See  National  Foundry   &  Pipe 

V.  Stringfellow,  25  Fla.  366,  5  So.  Works,  Ltd.  v.  Oconto  City  Watet 

816;  Rogers  v.  Heron,  92  111.  583;  Supply  Co.  113  Fed.  793,  51  C.  C. 

Dickernian  v.  Lust,  66  Iowa,  444,  23  A.  465. 

N.  W.  916;  Spurgin  v.  Adamson,  62  3  Md.  Code,  art.  16  §  188., 

Iowa,  661,  18  N.  W.  293;  Moore  v.  ^McSiece  v.  Elison,  78  Md.  168; 

Beasom,  44  N.  H.  215;  Brewer  v.  27  Atl.  940. 


1087] 


REDEMPTION. 


1481 


§  1087.  Same — Attachment  and  judgment  creditors. — 

A  creditor  who  has  caused  the  mortgaged  property  to  be 
attached  for  the  payment  of  his  claim,  and  who  is  not  made 
a  party  to  a  suit  to  foreclose  a  prior  mortgage,  will  be  entitled 
to  redeem  therefrom ;  ^  because  an  attaching  creditor  who 
has  not  yet  obtained  judgment  has  a  lien  on  the  real  estate 
attached,  within  the  meaning  of  the  statute  ^  relating  to  re- 
demption of  real  estate,  and  which  gives  any  one  having 
lien  a  right  to  redeem^  But  it  has  been  said  by  the  supreme 
court  of  Missouri  that  an  attaching  creditor  cannot  maintain 
a  suit  to  redeem  land  attached  for  a  mortgage  executed  by  the 
defendant  in  the  judgment  suit.^ 

A  judgment  creditor  who  has  reduced  his  claim  to  judg- 
ment, and  the  judgment  has  become  a  contention  lien  on 
the  mortgaged  property,  has  such  an  interest  in  the  premises 
as  entitles  him  to  redeem  from  the  lien  of  a  mortgage.®     To 


^  Briggs  v.  Davis,  108  Mass.  322; 
Atwater  v.  Manchester  Sav.  Bank, 
45  Minn.  341,  48  N.  W.  187,  12 
L.R.A.  741;  Chandler  v.  Dyer,  37 
Vt.  345. 

6  As  Minn.  Gen.  Stat.  1878,  c.  66, 
§  323,  c.  81  §  16. 

"^Atwater  v.  Mancliester  Sav. 
Bank,  45  Minn.  341,  48  N.  W.  187, 
12  L.R.A.  741. 

8  Fisher  v.  Tallman,  74  Mo.  39. 

^  Florence  Land  Min.  &  Mfg.  Co. 
V.  IVarren,  91  Ala.  533,  9  So.  384; 
Powers  V.  Robinson,  90  Ala.  225,  8 
So.  10;  Walden  v.  Speigner,  87  Ala. 
390,  6  So.  80;  Wilkins  v.  Wilson,  51 
Cal.  212;  Kent  v.  Laflin,  2  Cal.  595 
Shroeder  v.  Bauer,  41  III.  App.  484 
Fitch   V.    IVctherbee,    110   111.   475 
Schuck    V.    Gerlech,    101    III.    338 
Grob  V.  Cuchman,  45  111.  119;  Lamb 
V.  Richards,  43  111.  312;  McClain  v. 
Sullivan,  85  Ind.  174;  Long  v.  Mel- 
let,  94  Iowa.   548,  63   N.   W.    190; 
Albee     v.     Lurtis,    77     Iowa,     644, 


42  N.  W.  508;  Hill  v.  Holliday,  2 
Litt.  (Ky.)  332;  White  v.  Bond,  16 
Mass.  400;  Lozvry  v.  Akers,  50 
Minn.  508,  52  X.  W.  922;  Marston 
V.  Williams,  45  Minn.  116,  22  Am. 
St.  Rep.  719,  47  N.  W.  640,  43  Alb. 
L.  J.  130;  Willard  v.  Finnegan,  42 
Minn.  476,  44  N.  W.  985,  8  L.R.A. 
50;  Bcrryhill  v.  Potter,  42  Minn. 
279,  44  N.  W.  251;  Bartleson  v. 
Thompson,  30  Minn.  161,  14  N.  W. 
795 ;  Pamperin  v.  Scanlan,  28  Minn. 
345,  9  N.  W.  868;  Willis  v.  Jelineck, 
27  Minn.  18,  6  N.  W.  373;  Worth- 
ington  v.  Wilmot,  59  Miss.  608; 
Mallalieu  v.  Wickhan,  42  N.  J.  Eq. 
(15  Stew.)  297,  10  Atl.  880;  Bige- 
low  V.  Casscdy,  26  N.  J.  Eq.  (11 
C.  E.  Gr.)  557;  Brainard  v.  Cooper, 
10  N.  Y.  356;  Belden  v.  Slade,  26 
Hun  (N.  Y.)  635,  638;  Van  Buren 
V.  Olmsted,  5  Paige  Ch.  (N.  Y.)  9; 
Benedict  v.  Oilman,  4  Paige  Ch.  (N. 
Y.)  58;  Lance  v.  Gorman,  136  Pa. 
St.  200,  20  Am.  St.  Rep.  914,  20  Atl. 


1482 


MORTGAGE   FORECLOSURES. 


[§  1087 


entitle  a  judgment  creditor  to  redeem  from  a  foreclosure  sale 


729;  Burden  v.  Robinson,  9  Baxt. 
(Tenn.)  364;  Jackson  v.  Lawrence, 
117  U.  S.  679,  29  L.  ed.  1024,  6 
Sup.  Ct.  Rep.  915;  Scriptcr  v. 
Bartleson,  43  Fed.  259;  Con- 
necticut  Mut.  Life  Ins.  Co.  v. 
Crawford,  21  Fed.  281;  United 
States  V.  Sturges,  1  Paine  C.  C. 
525 ;  Stonehewer  v.  Thompson,  2 
Atk.  440;  Mildred  v.  Austin,  L.  R. 
8  Eq.  220;  A^^a?£'  v.  Marlborough,  3 
Myl.  &  C.  407.  /o/»;.y  v.  Anchors, 
153  Ala.  498,  45  S.  218.  See  Shu- 
mate as  adm'r  etc.  v.  McLendon, 
120  Ga.  396,  48  S.  E.  10.  McGraugh 
V.  Deposit  Bank  of  Frankfort,  147 
Ala.  229,  40  So.  984.  Wyman  v. 
Friedman,  120  111.  App.  543. 

And  this  is  true  notwithstanding 
that  the  judgment  creditor  has 
taken  a  deed  to  the  property. 
People  ex  rel.  Bethmann  v.  Bow- 
man, 181  111.  421,  72  Am.  St.  Rep. 
265,  55  N.  E.  148;  Continental 
Mutual  Life  Ins.  Co.  v.  King,  72 
Minn.  287,  75  N.  W..  376. 

A  purchaser  at  a  foreclosure  sale 
may  attack  the  validity  of  a  judg- 
ment against  the  mortgagor  in 
order  to  prevent  an  unauthorized 
redemption  by  the  judgment  credit- 
or. Hughes  v.  Olson,  74  Minn. 
237,  73  Am.  St.  Rep.  343,  77  N.  W. 
42. 

A  judgment  creditor  of  a  mort- 
gagor who  has  given  a  deed  abso- 
lute in  form,  taking  back  a  separate 
defeasance,  may  maintain  an  action 
against  the  mortgagee  or  the  lat- 
ter's  grantees  to  have  his  judgment 
declared  a  lien  upon  the  equity  of 
redemption  of  the  mortgagor  in  the 
mortgaged  lands.  Marston  v.  Wil- 
liams, 45  Minn.  116,  22  Am.  St.  Rep. 
719,  47   N.  W.  644.  43  Alb.   L.  J. 


130. 

Where  a  foreclosure  was  irregu- 
lar through  failure  to  make  parties 
thereto,  B,  a  judgment  creditor, 
who  was  an  incumbrancer  subse- 
quent to  the  mortgage,  and  S,  as- 
signee of  the  judgment  debtor,  the 
court  held  that  B  might  redeem 
from  the  sale;  but  he  would  be  re- 
quired to  pay  the  costs  of  his  action 
unless  it  was  improperly  resisted. 
B  eld  en  v.  Slade,  26  Hun  (N.  Y.) 
635. 

In  Alabama  a  judgment  creditor 
of  the  estate  of  an  insolvent,  who 
has  not  filed  his  judgment  within 
nine  months  after  the  decree  of 
insolvency,  cannot  redeem  the  prop- 
erty from  a  sale  on  foreclosure  of 
a  mortgage  thereon.  Walden  v. 
Speigncr,  87  Ala.  390,  6  So.  80. 

A  right  of  redemption  exists  in 
the  judgment  creditor  of  the 
grantee  who  takes  a  deed  from  the 
owner  of  the  equity  of  redemption 
after  the  foreclosure  sale  and  prior 
to  the  expiration  of  the  twelve 
months  period.  .Stna  Life  Ins.  Co. 
V.  Beckman,  210  111.  394,  71  N.  E. 
452. 

In  Iowa  the  right  of  a  judgment 
creditor  to  redeem  from  the  sale 
under  a  senior  mortgage  is  abso- 
lutely barred  in  ten  years  from  the 
date  of  his  judgment,  under  Iowa 
Code,  §  2882,  and  non-residence 
makes  no  difference.  Albee  v.  Cur- 
tis, 77  Iowa,  644,  42  N.  W.  508. 

In  Indiana,  under  a  statute  pro- 
viding that  a  judgment  creditor  who 
redeems  "shall  maintain  a  lien  on 
the  premises  for  the  amount  of 
money  so  paid  for  redemption 
against  the  owner  and  any  junior 
incumbrancer,"  a  junior  incumbran- 


§     1087]  REDEMPTION.  1483 

of  the  land  of  his  debtor,  it  is  not  enough  that  he  is  a  credit- 


cer  so  redeeming  occupies  the  same 
priority  as  to  the  redemption  money 
that  the  original  judgment  creditor 
occupied.  McClaiii  v.  Sullivan,  85 
Ind.  174. 

In  Minnesota  where  a  second 
mortgagee  purchased  an  assignment 
of  the  certificate  of  sale  on  the  first 
mortgage,  but  fulfilled  none  of  the 
requirements  of  Minn.  Gen.  Stat. 
1878,  c.  81,  §  16,  which  regulates  re- 
demption by  creditors,  the  court 
held  that  he  could  not  hold  the 
premises  as  against  the  holder  of 
a  third  lien  thereon,  who  had 
fulfilled  all  such  requirements,  and 
paid  the  amount  for  which  the 
premises  sold  with  interest.  Pant- 
perin  v.  Scanlan,  28  Minn.  345,  9 
N.  W.  868. 

Any  judgment  creditor  has  a 
right  to  file  a  bill  against  the  mort- 
gagor and  mortgagee,  and  redeem 
the  mortgaged  property,  by  paying 
what  is  actually  due  on  the  mort- 
gage. Hill  V.  Holliday,  2  Litt. 
(Ky.)   332. 

Amount  a  judgment  creditor  is 
bound  to  pay  to  redeem  mortgaged 
premises,  after  a  statute  foreclo- 
sure, is  the  sum  actually  due  upon 
the  mortgage,  and  not  the  sum  bid 
by  the  purchaser.  Benedict  v.  Gil- 
man,  4  Paige  Ch.  (N.  Y.)  58. 

Heirs — Judgment  against. — One 
having  a  judgment  lien  against  one 
of  the  heirs  of  a  deceased  intestate 
mortgagor  may  redeem  from  the 
mortgage  sale.  Willis  v.  Jelineck, 
27  Minn.  18,  6  N.  W.  2,72,. 

From  a  foreclosure  made  after 
the  death  of  the  mortgagor,  judg- 
ment creditors  of  the  heirs  of  the 
mortgagor  may  redeem,  the  creditor 
of  any  particular  heir  paying  that 


proportion  of  the  sum  for  which 
the  land  was  sold  which  such  heir's 
interest  in  the  land  bears  to  the 
whole.  Schuck  v.  Gerlach,  101  111. 
338. 

Same  —  Redeeming  part.  —  The 
holder  of  a  judgment  against  the 
original  mortgagor  may  redeem  and 
subject  to  his  claim  three-fifths  of 
the  land,  after  creditors  of  the 
mortgagor's  heirs  have  acted  simi- 
larly with  regard  to  two-fifths 
thereof,  the  time  limited  for  such 
redemption  not  having  expired,  and 
the  fact  that  the  execution,  of  which 
the  redemptor  was  only  assignee, 
was  improperly  issued  in  his  name, 
will  not  invalidate  the  proceedings. 
Schuck  v.  Gerlach,  101  111.  338. 

Homestead  —  A  mere  judgment 
creditor  has  no  lien  on  a  debtor's 
homestead  so  as  to  be  entitled  to  re- 
deem from  a  purchaser  under  a 
foreclosure  of  a  senior  mortgage. 
Spurgin  v.  Adamson,  62  Iowa,  661, 
18  N.  W.  293. 

In  United  States  courts — A  judg- 
ment creditor  may  redeem  premises 
from  a  sale  under  judgment  or  de- 
cree of  a  United  States  court  by 
suing  out  execution  upon  his  judg- 
ment in  the  ordinary  manner,  plac- 
ing his  execution  in  the  hands  of 
the  proper  officer  to  execute,  and 
paying  the  money  needed  to  redeem 
to  the  clerk  of  the  United  States 
court,  together  with  the  commis- 
sions of  the  clerk  for  receiving  and 
paying  the  money,  but  payment  of 
the  money  into  the  hands  of  the 
sheriff  is  not  sufficient.  Connecticut 
Mut.  Life  Ins.  Co.  v.  Crawford,  21 
Fed.  281. 

Partnership  bonds  —  Judgment 
creditors   of   member  of   firm   may 


1484 


MORTGAGE    FORECLOSURES. 


[§  1087 


or/°  if  his  lien  has  been  extinguished,^^  or  does  not  exist. ^^ 
It  is  well  settled  by  the  decisions  that  the  mere  fact  that  a  per- 
son occupies  the  position  of  a  second  mortgagee,  or  subsequent 
judgment  creditor,  does  not  entitle  him  to  redeem  the  prior 
mortgage.    Unless  some  special  equity  exists  in  the  subsequent 


not  redeem  that  land  conveyed  to  a 
partnership  in  its  common  or  firm 
name  binds  only  the  joint  property 
of  the  associates,  but  vests  in  the 
several  partners  as  tenants  in  com- 
mon, a  judgment  creditor  cannot 
redeem  from  a  mortgage-foreclo- 
sure sale  of  the  lands  held  by  a 
partnership  in  its  firm  name,  under 
Ala.  Code  1886,  §  2605,  providing 
that  a  judgment  recovered  against 
partners  in  their  common  or  firm 
name  binds  only  the  joint  property 
of  all  the  associates.  Powers  v. 
Robinson,  90  Ala.  225,  8  So.  10. 

But  it  is  said  that  a  judgment 
creditor  of  a  member  of  a  firm  may, 
under  Alabama  Code,  1886,  §  1883, 
redeem  lands  belonging  to  his 
debtor  individually  from  a  sale  un 
der  a  mortgage  executed  by  both 
members  of  the  firm.  Florence 
Land  Min.  &  Mfg.  Co.  v.  Warren, 
91  Ala.  533,  9  So.  384. 

This  is  permitted  where  the  prem- 
ises are  in  hands  of  heirs  or  person- 
al representative  of  the  mortgagee 
on  payment  of  the  amount  justly 
due.  Van  Bur  en  v.  Olmstead,  5 
Paige  Ch.  (N.  Y.)  9. 

A  judgment  cannot  be  entered 
declaring  the  plaintiff  to  be  the 
owner  of  land  and  entitled  to  re- 
deem land  from  defendants  as 
mortgagees  where  the  relation  of 
debtor  and  creditor  between  the 
parties  has  never  existed,  and  there 
is  no  obligation  of  any  character  se- 
cured  or   to  be   secured   by    mort- 


gage, since  without  such  an  obli- 
gation there  can  be  no  mortgage. 
Schultz  v.  McLean,  93  Cal.  329,  25 
Pac.  427,  28  Pac.  1053. 

After  mortgagor  has  failed  to  re- 
deem a  judgment  creditor  of  a 
mortgagor  who  has  conveyed  his 
equity  of  redemption  before  the 
foreclose  sale,  and  has  allowed  the 
time  for  redemption  to  pass,  may 
redeem  from  the  sale.  Fitch  v. 
Wetherbee,  110  111.  475. 

1°  The  court  of  appeals  of  Illinois 
has  held  it  is  not  necessary  that  a 
judgment  should  be  a  lien  against 
the  land  to  entitle  the  judgment 
creditor  to  redeem.  Shrocder  v. 
Bauer,  41  111.  App.  484,  aff'd  on 
other  grounds  in  140  111.  135,  29  N. 
E.  560.  This  case  is  not  in  harmony 
with  the  current  of  authority. 

11  The  holder  of  a  second  judg- 
ment subsequent  to  one  under  which 
land  is  sold  loses  the  right  to  redeem 
from  a  prior  foreclosure  sale  by  a 
sale  on  execution  which  cuts  of?  his 
lien.  Lozn'ry  v.  Akers.  50  Minn.  508, 
52  N.  W.  922. 

The  owner  of  a  judgment  that  has 
ceased  to  be  a  lien  has  no  right  to 
redeem  from  a  sale  under  a  mort- 
gage lien  which  was  prior  to  his 
judgment.  Long  v.  Mellet,  94  Iowa, 
548,  63  N.  W.  190. 

12  See  Greenwood  v.  Trigg,  Dobbs 
&  Co.  154  Ala.  487,  46  So.' 227. 

He  must  take  out  an  execution 
first.  Quinn  v.  Brittain,  1  Hoffm. 
Ch.   (N.  Y.)  353. 


§     1087]  REDEMPTION.  1485 

incumbrancer,  the  prior  mortgagee  has  a  right  to  retain  his 
security,  and  may  refuse  to  surrender  it,  so  long  as  the  mort- 
gagor does  not  wish  to  discharge  it.  If  the  second  incum- 
brancer is  in  danger  of  losing  the  benefit  of  his  security,  unless 
he  is  permitted  to  redeem,  and  the  circumstances  are  such 
that  equity  would  subrogate  him,  upon  making  these  facts 
known  to  the  first  mortgagee,  and  making  him  an  uncon- 
ditional tender  of  his  money,  he  is  put  upon  his  inquiry,  and, 
after  taking  a  reasonable  time  to  be  advised,  his  refusal  to 
accept  the  tender  and  deliver  up  his  mortgage  is  at  his  peril." 
A  junior  judgment  creditor  can  enforce  the  equity  of  re- 
demption after  a  collusive  foreclosure  to  which  he  was  not  a 
party,^*  and  upon  tendering  to  the  purchaser  of  land  sold 
under  a  deed  of  trust  the  necessary  amount,  and  offering  to 
give  credit  upon  his  judgment,  may  maintain  a  bill  to  redeem 
from  such  purchaser.^^ 

A  redemption  by  a  judgment  creditor  from  a  mortgage 
which  is  good  on  its  face,  and  at  the  most  is  merely  void- 
able at  the  election  of  the  purchaser  at  the  mortgage  sale, 
cannot  be  attacked  in  a  suit  between  him  and  a  vendee  of 
the  mortgagor,  whose  rights  have  been  cut  off  by  the  fore- 
closure.'^*  But  a  judgment  creditor  who  has  redeemed  from 
the  foreclosure  property  of  his  debtor  sufficient  in  value  to 
satisfy  his  judgment,  cannot  redeem  any  other  property  under 
his  judgment." 

It  has  been  said  by  the  supreme  court  of  Connecticut,  in 
the  case  of  Loomis  v.  Knox,"  that  the  foreclosure  of  a  judg- 
ment lien  on  one  of  two  tracts  covered  by  it,  for  more  than 
the  amount  of  the  entire  debt,  is  a  redemption  of  the  other 
tract,  and  subrogates  the  debtor  to  the  right  of  the  judgment 

13  Bigelow  v.    Cassedy,  26   N.   J.  ^^  IVillard  v.  Finnegan,  42  Minn. 

Eq.  (11  C.  E.  Gr.)  557.  476.  44  N.  W.  985,  8  L.R.A.  50. 

1*  Worthington     v.     Wilmot,     59  "  Scripter  v.   Bartleson,  43   Fed. 

Miss.  608.  259. 

^^  Burton   v.   Robinson,  9   Baxter  18  go  Conn.  343,  22  Atl.  771. 

(Tenn.)  364. 


1486  MORTGAGE    FORECLOSURES.  [§    1088 

creditor  to  redeem  a  first  mortgage  on  such  tract,  which  has 
been  foreclosed  without  making  the  latter  a  party  to  the  fore- 
closure proceedings. 

§  1088.  Same — From  another  creditor. — The  right  of 
ihe  successive  holders  of  a  series  of  notes,  maturing  at  dif- 
ferent times,  and  secured  by  the  same  mortgage,  to  redeem 
from  a  foreclosure  and  sale  in  favor  of  the  holder  of  the  note 
first  maturing,  is  the  same  as  that  of  separate  junior  incum- 
brancers to  redeem  from  a  foreclosure  of  a  prior  mortgage.^* 
But  a  mortgagee  cannot  redeem  the  mortgaged  land  from  one 
who  has  himself  redeemed  it  from  the  purchaser  at  a  sale  to 
foreclose  a  vendor's  lien,  under  a  statute  ^°  permitting  one 
judgment  creditor  to  redeem  from  another,  upon  tender  or 
payment  of  the  amount  given  by  the  latter,  and  a  stipulated 
per  cent,  per  annum  thereon  in  addition.^^ 

§  1089.  Same — Having  lien  on  land. — A  person  having 
a  specific  lien  on  land  mortgaged  to  secure  the  debt  of  another, 
is  entitled  to  redeem  the  land  from  the  lien  of  such  mort- 
gage by  paying  the  amount  due  thereon.^^  Under  a  statute 
providing  for  redemption  from  foreclosure  sale  by  "creditor 
having  a  lien  on  the  land  or  some  part  thereof,"  ^^  a  second 

^^ Preston  v.  Hodgen,  50  111.  56.  July,    1879,    C   recovered   judgment 

20  As  Ala.  Code,  §  1885.  against  A,  which  was  docketed,  and 

21  Owen  V.  Kilpatrick,  96  Ala.  became  a  lien  on  the  debtor's  real 
421,  11  So.  476.  estate,  except  his  homestead.    Minn. 

22  In  Martin  v.  Sprague,  29  Minn.  Gen.  St.  1878,  c.  81,  §  16,  gives  a 
53,  11  N.  W.  143,  A  owned  lots  11  right  of  redemption  to  creditors 
and  12,  12  being  a  homestead.  A  having  a  lien  "on  the  real  estate  or 
and  wife  mortgaged  to  B.  A  fore-  some  part  thereof."  The  court 
closure  sale  of  both  lots  in  one  held  that  A's  wife  did  not  redeem 
parcel  was  made  in  November,  the  property  from  the  mortgage, 
1879.  In  November,  1880,  A's  wife  and  that  C  could  redeem  both  par 
paid  the  purchaser  the  amount  for  eels,  and,  by  taking  the  proper  steps, 
which  the  property  was  sold,  and  became  vested  with  title  to  both, 
took  assignments  of  the  certificate  23  As  Minn.  Gen.  Stat.  1878,  c.  81, 
of   sale  and  of  the  mortgage.     In  §  16. 


§     1092]  REDEMPTION.  1487 

mortgagee  is  within  the  meaning  of  the  statute,  and  so  is  a 
person  having  a  lien  on  an  undivided  interest  therein.^* 

§  1090.  Same — Of  husband  on  mortgage  of  wife's  prop- 
erty.— A  creditor  of  the  husband  has  no  right  to  redeem 
from  a  mortgage  by  the  husband  and  wife  of  the  wife's 
land;^^  and  a  creditor  of  a  husband  suing  to  subject  to  the 
payment  of  his  debt  a  building  erected  by  the  husband  with  his 
own  money  on  his  wife's  land,  has  no  right  to  redeem  from 
a  mortgage  on  the  land  executed  by  the  wife,  and  is  therefore 
under  no  duty  to  offer  to  redeem.^^ 

§  1091.  Defendant  may  redeem. — When  the  mortgagor 
is  the  defendant  in  an  action  of  foreclosure  he  is  entitled  to 
redeem  under  the  general  rules  already  laid  down.'^'  In  some 
of  the  states,  as  in  Iowa,  it  is  provided  by  statute  that  the 
"defendant"  may  redeem.  Where  a  statute  so  provides,  the 
word  "defendant"  is  held  to  mean  that  the  mortgagor  or  person 
holding  the  legal  or  possibly  an  equitable  title  subject  to  the 
mortgage.^^ 

§  1092.  Devisees  and  legatees. — We  have  already  seen 
that  the  assignee  of  the  equity  of  redemption  of  the  mort- 
gagor may  redeem  under  like  circumstances  as  the  mortgagor 

2*  Willis  V.  Jelineck,  27  Minn.  18,  ises   from   C,  and  took  possession. 

6  N.  W.  Z7Z.     See  also  Schcibel  v.  In  ejectment  by  A's  grantee  to  re- 

Anderson,  77  Minn.  54,  77  Am.  St.  cover  possession  of  A's  life  estate. 

Rep.  664,  79  N.  W.  594.  the  court  held  that  he  could  not  re- 

25  See    Ware   v.    Seasongood,   92  cover. 

Ala.  152,  9  So.  138;  Ware  v.  Hamil-  26  Ware  v.  Hamilton  Brown  Shoe 

ton,  92  Ala.  145,  9  So.  136;  Abra-  Co.  92  Ala.  145,  9  So.  136;  Ware  v. 

ham  V.  Chenoweth,  9  Oreg.  348.    In  Seasongood,  92  Ala.  152,  9  So.  138. 

Abraham    v.    Chenoweth,    9    Oreg.  ^7  See  ante,  §  1077.     But  see  Stit- 

348,  A  and  B,  his  wife,  mortgaged  ties  v.  Sewell,  105  Ga.  129,  31  S.  E. 

B's   land,   and  after   B's  death  the  41. 

mortgage    was    foreclosed   and    the  ^8  Miller  v.  Ayres,  59  Iowa,  424. 

land  bought  by  C.     The  grantee  of  13  N.  W.  436. 
B's  heirs  then  redeemed  the  prem- 


1488  MORTGAGE    FORECLOSURES.  [§    1093 

may  redeem  under  like  circumstances  as  the  mortgagor  him- 
self,'^® and  where  the  mortgagor  or  owner  of  the  equity  of 
redemption  has  devised  his  equity  of  redemption,  on  his  death 
his  devisee  may  redeem.^"  In  those  cases  where  a  legacy  is 
made  a  charge  on  the  real  estate,  it  is  thought  the  legatee  has 
such  an  interest  in  the  land  on  which  the  legacy  is  a  charge  as 
will  entitle  him  to  redeem,^^ 

§  1093.  Grantee  in  trust  deed — May  not  redeem, 
when. — In  those  cases  where,  in  default  of  the  payment  of 
the  sum  secured  by  deed  of  trust,  the  property  is  sold  and  pur- 
chased by  the  cestui  que  trust,  it  is  thought  the  vendee  has  no 
right  to  redeem  without  first  giving  security  for  the  payment  of 
interest  to  accrue  after  the  sale,  and  for  all  damage  and  waste 
occasioned  or  permitted  by  the  party  whose  property  is  sold.^^ 

§  1094.  Grantor  of  lands  mortgaged  to  secure  debt  of 
another. — The  court  of  chancery  of  New  Jersey,  in  the 
case  of  McKee  v.  Jordan,'^  say  that  a  grantor  in  a  deed  de- 
livered to  an  attorney  with  authority  to  deliver  it  to  the 
grantee  as  security  for  the  loan  of  a  stated  sum  to  her  son 
may  redeem  upon  paying  that  sum  only,  where  the  grantee, 
although  notified  by  the  solicitor  of  the  amount  it  was  intend- 
ed to  secure,  accepted  it  as  security  for  an  additional  sum 
previously  advanced  the  son,  relying  upon  the  latter's  false 
statement  that  it  was  intended  by  the  grantor  as  security  for 
the  total  amount.  And  the  supreme  court  of  New  York  have 
held  that  a  grantor  who  has  conveyed  lands  held  adversely 


29  See  ante,  §  1082.  31  See  Batchelder  v.  Middleton,  9 

^^  Denton  v.  Nanny,  8  Barb.   (N.  Hare,  75. 

Y.)    618;    Stokes    v.    Solomons,    9  ^^  Johnson  v.  Atchison,  90  Mo.  48, 

Hare,    75;    Faulker    v.    Dayiicl,    3  1  S.  W.  751. 

Hare,    199;   French  v.  Newham.  2  8350  N.  J.  Eq.   (5  Dick.)  306,  24 

Vern.  216.  Atl.  398. 


§    1095]  REDEMPTION.  1489 

to  him  has  no  cause  of  action  in  his  own  right  to  redeem  from 
a  mortgage  on  such  lands  made  by  a  former  owner. ^* 

§  1095.  Grantor  in  deed  absolute  in  form  but  mortgage 
in  effect. — Where  a  deed,  absolute  in  form,  is  given  to 
secure  a  debt,  the  grantor,  or  those  in  priority  to  him.  have 
the  same  right  to  redeem  that  they  would  have  were  the  in- 
strument a  formal  mortgage ;  and  this  right  extends  to  an 
assignee  of  the  grantee  with  notice  of  the  nature  of  transac- 
tion.^^ Thus  it  is  said  by  the  supreme  court  of  Nebraska,  in 
the  case  of  Eiseman  v.  Gallagher,^®  that  the  original  grantor 
in  a  deed  which  is  in  fact  a  mortgage  is  entitled  to  redeem 
from  a  subsequent  purchaser  with  notice  of  sufficient  facts 
to  put  him  upon  inquiry,  on  paying  the  amount  of  the  loan, 
with  interest. 

Such  a  grantor  who  has  received  part  of  the  proceeds  of 
a  mortgage  made  by  his  grantee,  can  redeem  only  by  pay- 
ing it  as  well  as  his  original  debt;  but  if  the  grantee  used 
the  proceeds  for  himself  or  to  discharge  debts  of  the  grantor 
which  he  was  bound  to  pay,  the  grantor  is  entitled  to  credit 
on  the  original  debt  for  the  amount  of  the  second  mort- 
gaged"^ And  where  such  an  instrument  has  been  made  with- 
out any  intent  to  defraud  creditors,  the  grantor  cannot  be 
barred  of  his  right  to  redeem  by  the  fact  that,  after  making 
it,  he  has  used  it  as  a  shield  against  creditors  by  representing 
that  the  conveyance  is  absolute. ^^ 

^* Johnson  v.  Snell,  58  Hun    (N.  W.  941;  I'anderhaise  v.  Hughes,  13 

Y.)  606,  mem.  34  N.  Y.  S.  R.  177,  X.  J.   Eq.    (2   Beas.)    410;   Ballard 

11  N.  Y.  bupp.  868.  V.  Jones,  6  Humph.    (Tenn.)    455; 

35  See    Turman  v.   Bell,   54   Ark.  Still  v.  Buzzell,  60  Vt.  478,  12  Atl. 

27Z,  26  Am.  St.  Rep.  35,  15  S.  W.  209. 

886;  Toivnsend  v.  Peterson,  12  Colo.  36  24  Xeb.  79,  Z7  X.  W.  941. 

491,  21  Pac.  619,  2  Deny.  L.  N.  185 ;  37  Turman  v.  Bell  54  Ark.  273,  26 

Belton  V.   Avery,  2   Root    (Conn.)  Am.  St.  Rep.  35,  15  S.  W.  886. 

279,  1  Am.  Dec.  70;  Daniels  v.  Al-  38  Townsend  v.  Peterson,  12  Colo. 

vord,  2   Root    (Conn.)    195;   Else-  491,    21    Pac.    619,   2   Denv.    Legal 

man  v.  Gallagher,  24  Neb.  79,  Z7  N.  News,  185. 
Mortg.  Vol.  II.— 94. 


1490  MORTGAGE    FORECLOSURES.  [§     1096 

§  1096.  Grantor  in  deed  of  trust. — A  deed  of  trust  is  in 
nature  and  effect  similar  to  a  mortgage  in  that  it  is  given  to 
secure  the  payment  of  a  debt,  and  on  payment  in  accord- 
ance with  the  terms  the  grantor  is  entitled  to  have  the  lien 
discharged.  A  grantor  in  a  deed  of  trust,  like  a  grantor 
in  an  ordinary  mortgage,  who,  on  the  maturity  of  the  debt 
secured  thereby,  tenders  the  amount  due  may,  upon  refusal 
of  the  tender,  maintain  a  bill  to  redeem. ^^  But  it  is  said  in 
Van  Meter  v.  Darrah,*°  that  under  the  Missouri  statute,*^  a 
grantor  in  a  deed  of  trust,  to  avail  himself  of  the  right  to 
redeem  from  a  sale  under  the  power  conferred  thereby  must 
give  security,  as  recjuired  by  that  statute,'*^  within  a  reasonable 
time  after  sale;  and  that  four  months  after  a  sale  made  when 
the  grantor  was  temporarily  insane  and  confined  in  an  asylum 
and  three  and  a  half  months  after  his  restoration  and  actual 
notice  to  him  of  the  sale,  is  not  such  reasonable  time  as  the 
statute  contemplates. 

The  court  of  appeals  of  Colorado,  in  the  case  of  McMeel 
V.  O'Connor,'*^  say  that  the  grantor  in  a  trust  deed  which 
was  void  because  the  parties  were  reversed — the  property 
being  conveyed  to  the  beneficiary  instead  of  the  trustee — 
has  the  right  to  pay  off  the  debt  secured  thereby,  and  to  re- 
ceive a  release  of  the  property  conveyed,  clear  of  a  cloud  cast 
upon  it  by  a  pretended  sale  and  deed  executed  by  the  trustee 
named  in  the  trust  deed. 

§  1097.  Guardians  may  redeem. — In  those  cases  where 
a  mortgage  is  given  to  the  special  guardian  of  an  infant  for 
the  benefit  of  the  latter,  the  special  guardian  is  the  proper 
person  to  file  a  bill  for  redemption  and  assignment  **  of 
a  senior  mortgage  **  because  he  is  a  person  who  has  a  right 

39  IViUcmin  v.  Dunn,  93  111.  511.  **  See  ante,  §  1035. 

40  115  Mo.  153,  22  S.  W.  30.  ^^  Pardee  v.  Van  Auken,  3  Barb. 
«  Mo.  Rev.  Stat.  1879,  §  3298.  (N.  Y.)  534.  See  Marvin  v.  Schill- 
42  Mo.  Rev.  Stat.  1879,  §  3299.  ing,  12  Mich.  356 

«3  Colo.  App.  113,  Z2  Pac.  182 


§     1099]  REDEMPTION.  1491 

to,  interest  in  or  lien  upon  the  lands  embraced  in  the  mort- 
gage.*^ 

§  1098.  Heirs  of  deceased  mortgagor  may  redeem. — 

Where  a  mortgagor,  owner  of  the  equity  of  redemption,  dies 
having  devised  his  right  of  redemption,  his  devisee  may 
redeem,*'  but  if  he  dies  without  having  either  assigned  or 
devised  this  equity,  it  descends  to  and  becomes  vested  in  his 
heirs,*®  and  is  not  barred  by  a  sale  of  the  land,  under  a  decree 
of  foreclosure,  in  an  action  in  which  the  administrator  of 
such  deceased  mortgagor  is  the  defendant,  and  the  heirs  are 
not  joined.**  The  supreme  court  of  Illinois,  in  the  case  of 
Hunter  v.  Dennis,^"  say  that,  when  the  mortgagor's  widow 
pays  the  debt  and  takes  a  deed  herself,  the  mortgagor's  heirs 
mav  redeem  from  her. 


§  1099.  Holder  of  legal  estate  may  redeem. — It  was 
settled  as  early  as  the  case  of  Lomax  v.  Bird,^^  decided  in 
1683,  that  no  one  can  redeem  from  the  lien  of  the  mort- 
gage who  cannot  show  a  title  in  the  equity  of  redemption. ^^ 
In  deciding  the  case  of  James  v.  Bion,"  in  1818.  Lord  Eldon 
said :  "It  is  extremely  clear  that  a  mortgagee  mav  retain  pos- 
session of  the  estate  until  he  is  paid,  and  that  no  one  has  a 
right  to  make  a  tender  of  the  money  due  except  the  partv 
entitled  to  the  equity  of  redemption;  against  all  other  persons 
the  estate  is  the  property  of  the  mortgagee.     In   Grant  v. 

^^Bcldeti  V.   Slade,  26   Hun    (N.  v.  Waite,  1  Phil.  61 ;  Pym  v.  Bower- 

Y.)  635.  641.  man,  3  Swan.  241;  Rainey  v.  Mc- 

47  See  ante,  §  1092.  Queen,   121    Ala.    191.  25    So.   920; 

«  Broun  V.  Stark,  12  Wis.  572,  78  Francis  v.  Sheats,  153  Ala.  468,  127 

Am.  Dec.  762.    See  Butts  v.  Brough-  Am.  St.  Rep.  61,  45  So.  241. 

ton,  72  Ala.  294;  Sheldon  v.  Bird,  2  ^^  Stark  v.  Brozcn,   12  Miss.  572, 

Root  (Conn.)  509;  Hunter  v.  Den-  78  Am.  Dec.  762. 

nis,  112  111.  568;  Storr  v.  Bounds,  1  50  112  m.  568. 

Ohio  St.  107,  109;  Zagcl  v.  Kustcr,  51  1  Vern.   182. 

51  Wis.  31,  7  N.  W.  781;  Chew  v.  52  See  ante,  §  1077:  post,  §  1121. 

//v;;/(7;;,  10  Biss.  C.  C.  240;  Lloyd  533  Swanst,  237. 


1492  MORTGAGE    FORECLOSURES.  [§    1100 

Diiane,**  the  court  held  that  no  person  can  come  into  a  court 
of  equity  for  a  redemption  of  a  mortgage  except  he  who  is 
entitled  to  the  legal  estate  of  the  mortgagor,  or  claims  a  sub- 
sisting interest  therein  under  him.  If  the  applicant  shows  no 
interest  in  himself,  or  a  right  to  redeem  the  mortgage  on  his 
own  account,  or  on  account  of  others,  with  whom  some  con- 
nection is  shown  and  whose  interest  he  has  a  right  to  repre- 
sent, his  claims  cannot  be  supported,  notwithstanding  some 
other  person  might  have  a  right  to  enforce  the  same  claim. 
A  mere  volunteer  cannot  be  allowed  to  speculate  on  the  claims 
of  others,  and  redeem  at  their  peril,  and  then  litigate  with 
those  who  may  have  the  right."  ^^ 

On  the  other  hand,  it  is  equally  well  settled  that  any 
person  who  holds  a  legal  estate  in  the  mortgaged  premises, 
or  any  part  thereof,^®  where  derived  through  or  in  privity  with 
the  mortgagor,  or  holding  a  legal  or  equitable  lien  on  the 
mortgaged  premises,  or  any  part  thereof,"  may  redeem. 

§  1100.  Holder  of  interest  in  mortgaged  premises. — 

The  general  rule  in  this  country  is  that  anyone  who  has  an 
interest  in  the  mortgaged  lands,  in  privity  with  the  mort- 
gagor, and  who  would  suffer  loss  by  foreclosure,  may  re- 
deem from  the  lien  of  the  mortgagor.®'  But,  it  has  been  said 
that  the  holder  of  a  tax  title  has  no  right  to  redeem  lands, 
embraced  in  his  deed,  from  a  mortgage  thereon  held  in  trust 
or  a  minor.®^  And  a  party  who  furnishes  material  for  the 
building  of  a  house,  but  does  not  follow  the  directions  of  the 
mechanics'  lien  law,  has  no  lien  on  the  premises  entitling  him 
to  redeem  a  mortgage  made  thereon,  nor  does  he  acquire  any 

549  John.  (N.  Y.)  611.  (12  Met.)   494;  Millard  v.   Truax, 

55  See  post,  §  1121.  50  Mich.  343,  15  N.  W.  501;  Boqut 

^^  See  post,  §  1102.  v.  Coburn,  27  Barb.    (N.  Y.)    230; 

57  See  ante,  §  1085  et  seq.  Pearce  v.  Morris,  L.  R.  5  Ch.  App. 

^^  Smith  V.  Axistin,  9  Mich.  475.  227. 

See  Scott  v.  Henry,   13  Ark.   112;  ^^  Witt    v.    Mewhirter,    57    Iowa, 

Farnum   v.    Met  calf,   62   Mass.    (8  545,  10  N.  W.  890. 
Cush.)  46;  Piatt  v.  Squire,  53  Mass. 


§    1102]  REDEMPTION.  1493 

interest  in  the  premises  by  reason  of  his  recovery  of  judgment 
against  the  mortgagor  after  foreclosure  and  sale.^" 

But  to  entitle  such  person  to  redeem  his  interest  must  be 
derived,  either  mediately  or  immediately,  from  or  through, 
or  in  the  right  of  the  mortgagor,  and  in  fact  constitute  a 
part  of  the  mortgagor's  original  right  of  redemption.^^ 

§  1101.  Holder  of  easement  in  mortgaged  premises. — 

It  is  said  by  the  supreme  judicial  court  of  Alassachusetts,  in 
the  case  of  Bacon  v.  Bowdoin,^^  that  a  person  having  an  ease- 
ment only  in  the  land  under  mortgage,  may  redeem. 

§  1102.  Holder  of  a  part  of  mortgaged  premises. — The 
holder  of  a  portion  of  mortgaged  premises,  not  made  a  party 
to  a  mortgage  foreclosure  proceeding,  is  entitled  to  redeem 
from  the  sale  made  thereunder.^^  The  supreme  court  of  the 
United  States,  in  the  case  of  Villa  v.  Rodriguez,®*  say  that 
one  who  holds  a  portion  of  the  title  by  deed  from  a  part  of 
the  mortgagors  is  clothed  with  their  rights,  and  is  entitled 
to  redeem  such  portion  upon  paying  a  proper  proportion  of 
the  mortgage  debt  and  interest;  but  the  weight  of  decision, 

^o  Eaton  v.   Bender,   1    Neb.   426.  half  of  such  money,  and  own  one 

61  Smith  V.  Austin,  9  Mich.  475.  undivided  half  of  the  land.  A  paid 
See  Millard  v.  Truax,  50  Mich.  343,  his  half.  The  holder  of  the  last 
15  N.  W.  501.  note,  still  unpaid,  had  the  land  sold 

62  39  Mass.   (22  Pick.)  401.  to    satisfy    his    judgment.      C,    the 
^^  Green   v.   Dixon,  9   Wis.    532;       holder    of    a    judgment    against    B, 

Rothschild  v.  Bay  City  Lumber  Co.  which  was  a  junior  lien  on  the  land, 

139  Ala.  571,  26  So.  785.     See  Low-  redeemed   the   land    from   the  sale. 

rey  v.   Byers,  80   Ind.   443 ;   Boqut  The   court   held   that  A   might   re- 

V.  Coburn,  27  Barb.    (N.  Y.)   230;  deem  from  C. 

Re  Willard,  5  Wend.    (N.  Y.)  94;  One   who   acquires    an    estate    in 

Pearce  v.  Morris,  L.  R.  8  Eq.  217.  part  of  the  mortgaged  premises  may 

See  also  Mercer  v.  McPherson,  70  redeem    before    foreclosure   of    the 

Kan.  617,  79  Pac.  118.  mortgage.     Howser  v.   Cruikshank, 

In  the  case  of  Lowrey  v.  Byers,  122  Ala.  256,  82  Am.  St.  Rep.  76,  25 

80  Ind.  443,  A  and  B  bought  land.  So.  206. 

giving  their  joint  notes  and  mort-  6479  u.   S.    (12  Wall.)   323;  sub 

gage  for  the  purchase-money,  and  nom.    Alexander   v.    Rodriguez,   20 

agreed   that    each    should    pay    one  L.  ed.  406. 


1494  MORTGAGE    FORFXLOSURES.  [§    1103 

and  the  better  doctrine,  is  thought  to  be  that  the  owner  of  a 
portion  of  the  mortgaged  premises  cannot  redeem  without  pay- 
ing the  whole  mortgage  debt.^^  It  is  thought  that  the  mort- 
gagee is  not  obHged  to  accept  a  tender  of  the  amount  due  on 
the  mortgage  from  one  w4io  holds  but  a  moiety  of  the  equity 
of  redemption,  and  when  there  is  a  dispute  as  to  the  title  to 
the  equity,  in  redemption  and  discharge  of  the  whole  mort- 
gage.^^  In  those  cases  where  one  of  several  owners  redeems 
the  mortgaged  premises  he  thereby  becomes  substituted,  in 
equity,  in  the  place  of  the  mortgagee,  and  is  entitled  to  hold 
the  land  as  if  the  mortgage  existed,  until  the  other  owners 
repay  to  him  tlieir  shares  of  the  incumbrance;  he  in  effect 
becomes  the  assignee  of  the  mortgagee,  for  the  purpose  of 
enabling  him  to  obtain  the  whole  title  to  the  land,  if  the  other 
owners  decline  to  contribute  their  respective  shares  towards 
the  removal  of  the  incumbrance.®' 

§   1103.  Holder  of  bond  to   convey  cannot  redeem. — 

It  is  said  by  the  supreme  judicial  court  of  Massachusetts, 
in  the  case  of  McDougald  v.  Capron,®^  that  a  bond  for  the 
conveyance  of  land  upon  the  performance  of  certain  con- 
ditions does  not  give  the  obligee  a  sufficient  title  to  enable 
him  to  maintain  a  bill  in  equity  against  a  mortgagee  for  the 
redemption  of  a  prior  mortgage  thereon.  It  is  otherwise, 
however,  where  a  person  is  in  possession  of  land  under  a 
contract  to  purchase.     Chancellor  Walworth,  in  the  case  of 

^5  Street  v.  Beat,  16  Iowa,  68,  85  of  the  tender  when  refused  under 

Am.    Dec.    504;    Rowell   v.   Jewett,  such   circumstances.     Nor  will    in- 

73  Me.  365;  Johnson  v.  Candage,  31  terest  stop  when  it  appears  that  the 

Me.  28 ;  Smith  v.  Kelly,  27  Me.  237,  person  making  the  tender  had  the 

46  Am.   Dec.  595 ;  Osibson  v.  Cre-  use  and  benefit  of  the  money  ten- 

hore,  22  Mass.  (5  Pick.)   146;  Tay-  dered  from  and  after  the  time  when 

lor  V.  Porter.  7  Mass.  355 ;  Lowrey  it  was  made.     Rowell  v.  Jewett,  73 

V.    Byers,    80    Ired.    (N.    C.)    443;  Me.  365. 

Hubbard  v.  Ascutney  Mill  Dam.  Co.  ^"^  Howard  v.  Ascutney  Mill  Dam 

20  Vt.  402,  50  Am.  Dec.  41.  Co.  20  Vt.  402,  50  Am.  Dec.  41. 

66  Rowell  V.  Jewett,  73  Me.  365.  68  73  Mass.  (7  Gray)  278. 

Interest  does  not  stop  at  the  date 


§     1105]  REDEMPTION.  1495 

Lowry  v.  Tew,^^  says :  "It  is  true  a  party  who  has  gone  into 
possession  of  premises  under  an  agreement  to  purchase  the 
same  is,  at  law,  a  tenant  at  will  to  the  holder  of  the  legal 
right.  But  if  he  is  under  a  written  agreement,  made  by  the 
owner,  to  sell  and  convey  the  premises  to  him,  or  under  a 
parol  agreement  which  has  been  so  far  consummated  as  to 
entitle  him  to  a  specific  performance,  he  is  in  equity  considered 
as  the  owner  of  that  title  for  which  he  contracted,  and  which 
the  ^•endor  is  to  give  him.  And  if,  that  is  an  equity  of  redemp- 
tion he  has  the  same  claim  to  redeem,  except  as  to  bone  fide 
purchasers  without  notice  of  his  equitable  rights,  as  if  the 
equity  of  redemption  had  been  conveyed  to  him  at  the  time 
his  equitable  rights  accrued  to  him  under  the  contract." 

§  1104.  Married  woman  mortgaging  own  property  for 
husband's  debt. — In  those  cases  where  a  married  woman 
gives  a  deed  of  her  property,  absolute  in  form,  to  secure  the 
debt  of  her  husband,  the  grantee  giving  back  a  bond  for  con- 
veyance to  the  husband,  upon  the  husband's  failure  to  pay  the 
debt  or  redeem,  the  wife  may  redeem. '° 

§  1105.  Mortgagee — junior  may  redeem. — A  junior 
mortgagee  or  other  junior  lienor,  has  a  right  to  redeem  from 
a  prior  lien,'^  even  though  the  decree  for  the  foreclosure  of 

69  3  Barb.  Ch.   (N.  Y.)  407,  414.  15  Cal.  516  Gamble  v.  Voll,  15  Cal. 

'''^  Brighton  v.  Doyle.  64  Vt.  616,  507;    Kirkham   v.   Dupont,    14   Cal. 

25  Atl.  694.  559;    Bridgeport    Savings   Bank    v. 

71  Fink  V.  Murphy,  21  Cal.  108.  81  Eldredgc,  28  Conn.  556,  73  Am.  Dec. 

Am.   Dec.   149;  Naylor  v.   Colville,  688;  Harrison  v.  Wise,  21  Conn.  1, 

20  App.  Div.  581,  47  N.  Y.   Supp.  63    Am.    Dec.    151;    Whitehead    v. 

267 ;  American  Loan  &  Trust  Co.  V.  Hall,    148   111.   253,   35    N.   E.   871; 

Atlanta   Electric   Ry.    Co.   99    Fed.  Rogers  \.H erron,  92  \\\.  5^2,;  Morse 

ZU;  Jones  V.Dutch,  Z^Qh.  {\5noi.)  v.    Smith.   83    III.    396;    Hodgen   v. 

673,  92  N.  W.  735.  Guttcry.    58    111.    431;    Catterlin    v. 

See  Wiley  v.  Ewing,  47  Ala.  418;  Armstrong.   79   Incl.   514;    Hosford 

Black  \.  Gerichten,  58  Cal.  56;  Horn  v.  Johnson.  74  Ind.  479;  Hassclman 

V.    Jones,   28   Cal.    194;    Tuolumme  v.  McKcrnan,  50  Ind.  441;  Skinner 

Redemption  Company  v.  Sedgwick,  v.    Young.  80  Iowa,  234,  45  N.  W. 


1496 


MORTGAGE    FORECLOSURES. 


[§  1105 


sncli  prior  lien  ascertains  the  amount  and  directs  the  payment 


889;  Smith  v.  Sliay,  62  Iowa,  119, 
17  N.  W.  444;  Tuttle  v.  Dewey,  44 
Iowa,  306;  McHenry  v.  Cooper,  27 
Iowa,  \37 ;  Anson  v.  Anson,  20 
Iowa,  55,  89  Am.  Dec.  514;  Knozvles 
V.  Rablin,  20  Iowa,  101 ;  Street  v. 
Beal,  16  Iowa,  68,  85  Am.  Dec.  504 
White  V.  Hampton,  13  Iowa,  259 
Heimstreet  v.  IVinney,  10  Iowa,  430 
Cooper  V.  Martin,  1  Dana  (Ky.) 
24;  Pritchard  v.  Kallamazoo  Col- 
lege, 82  Mich.  587,  47  N.  W.  31; 
Case  Threshing  Machine  Co.  v. 
Mitchell,  74  Mich.  679,  42  N.  W. 
151;  Lamb  v.  Jeffrey,  41  Mich.  719, 
3  N.  W.  204;  Gatz  v.  Toles,  40 
Mich.  725 ;  Soger  v.  Tuppcr,  35 
Mich.  134;  /iz^cri;  v.  Ryerson,  34 
Mich.  362;  Bovey  De  Laittre  Lum- 
ber Co.  V.  Tucker,  48  Minn.  223,  50 
N.  W.  1038;  Tinkcom  v.  Lewis,  21 
Minn.  132;  Wilson  v.  Vanstone,  112 
Mo.  315,  20  S.  W.  612;  Reynard  v. 
Brown,  7  Neb.  449;  Lambertville 
National  Bank  v.  McCready  Bag  & 
Paper  Co.  (N.  J.  Ch.)  15  Atl. 
388,  1  L.R.A.  334;  Hill  v.  fF/ii7(7, 
1  N.  J.  Eq.  (1  Saxt.)  435; 
Benton  v.  Hatch,  122  N.  Y.  329, 
25  N.  E.  486;  Clark  v.  Mackin, 
95  N.  Y.  351;  Tombly  v.  Cassidy,  82 
N.  Y.  155 ;  Frost  v.  Yonkers  Sav- 
ings Bank,  70  N.  Y.  553,  26  Am. 
Rep.  627;  Pardee  v.  McAuken,  3 
Barb.  (N.  Y.)  534;  Jenkins  v.  Con- 
tinental  Insurance  Co.  12  How.  (N. 
Y.)  Pr.  66;  Denton  v.  Ontario 
County  National  Bank,  18  N.  Y. 
Supp.  35,  44  N.  Y.  S.  R.  33 ;  Dings 
V.  Par  shall,  7  Hun.  (N.  Y.)  522; 
Bloomingdalc  v.  Barnard,  14  N.  Y. 
Supr.  460;  Campbell  v.  McElevery, 


2  Disn.  (Ohio)  574;  Hovenden  v. 
A:;io/A,  12  Oreg.  267,  7  Pac.  30; 
C havener  v.  Wood,  2  Oreg.  182; 
Moloney  v.  Earheart,  81  Tex.  281, 
16  S.  W.  1030;  IFa/^<?r  v.  King,  44 
Vt.  601 ;  Downer  v.  Wilson,  2:i  Vt. 
1;  Fanvell  v.  Murphy,  2  Wis.  533; 
iMiiriat  V.  Stratton,  6  Sawy.  C.  C. 
339;  y^^/j^;!/  v.  Howard,  (1893)  2  Ch. 
54;  Smith  v.  Green,  1  Coll.  550; 
Ramsbottom  v.  Wallis,  5  L.  J.  N.  S. 
Ch.  92 ;  Fa/ife  v.  Clinton,  12  Ves.  59, 
8  Rev.  283;  Wemple  v.  Yosemite 
Gold  Mining  Co.  87  Pac.  280  (Cal. 
App.)  ;  Bristol  v.  Hershey,  95  Pac. 
1040  (Cal.  App.)  ;  Darelins  v.  Davis, 
74  Minn.  345,  77  N.  W.  214;  Lo«g 
V.  Richards,  170  Ma«s.  120,  64  Am. 
St.  Rep.  281,  48  N.  E.  1083.  See 
also  ILorr  v.  Herrington,  22  Okla. 
590,  20  L.R.A.(N.S.)  47,  98  Pac. 
443. 

In  Alabama,  Code  i886,  §  1879, 
the  right  of  redemption  is  confined 
to  the  persons  upon  whom  it  is  ex- 
pressly conferred.  Junior  mort- 
gagees and  assignees  not  being  men- 
tioned cannot  redeem.  Commercial 
Real  Estate  &  B.  Association  v. 
Parker,  84  Ala.  298,  4  So.  268; 
Aiken  v.  Bradford,  84  Ala.  395,  4 
So.  266;  Powers  v.  Andrews,  84 
Ala.  289,  overruling  Bailey  v.  Tim- 
bcrlake,  74  Ala.  221. 

In  the  case  of  Powers  v.  Andrews, 
supra,  the  court  say:  "The  statu- 
tory right  of  redemption,  on  the 
contrary,  comes  into  existence  only 
after  the  equity  of  redemption 
proper  has  been  cut  off  by  sale  or 
foreclosure.  Until  then,  it  would 
seem,    it    cannot    spring    into    life. 


§  1105] 


REDEMPTION. 


1497 


of  the  junior  lien  out  of  any  surplus  proceeds  of  the  sale  re- 


And  we  have  uniformly  decided 
that  this  privilege  is  neither  prop- 
erty, nor  the  right  of  property ;  that 
it  is  not  subject  to  levy  or  sale  as 
such  under  execution;  and  that  it 
is  a  right  or  privilege  personal  to 
the  debtor.  Parmer  v.  Parmer,  74 
Ala.  285 ;  Otis  v.  McMillan,  70  Ala. 
46,  62;  Childress  v.  Moncttc,  54 
Ala.  317;  Mewburn  v.  Bass,  82  Ala. 
626,  2  So.  520;  Cooper  v.  Hornsby, 
71  Ala.  62;  Seals  v.  Phciffer,  77 
Ala.  278.  It  necessarily  follows 
from  these  principles,  which  are 
now  too  well  settled  to  be  dis- 
turbed, that  the  statutory  right  of 
redemption  can  only  be  exercised 
by  persons  named  in  the  statute,  in 
the  mode,  within  the  time,  and  upon 
the  conditions  therein  prescribed, 
although  in  construing  the  statute 
it  must  be  interpreted  liberallly  in 
favor  of  the  debtor,  to  prevent  the 
oppressive  sacrifice  of  his  estate. 
The  statute  itself  provides,  in  de- 
tail and  very  fully,  for  the  mode 
in  which  the  right  may  be  exercised, 
and  the  circumstances  which  au- 
thorize it,  and  the  remedy  for  en- 
forcing it.  The  right  is  conferred 
only  on  the  following  named  classes 
of  persons:  (1)  The  debtor  him 
self;  (2)  any  judgment  creditor 
of  the  debtor  whose  judgment  has 
not  been  obtained  by  fraud,  col- 
lusion or  confession;  (3)  the  ex- 
ecutor or  administrator  of  the  debt- 
or; (4)  the  heirs  or  devisees  of  the 
debtor;  (5)  the  executor  or  ad- 
ministrator of  any  judgment  credit- 
or of  the  debtor;  (6)  a  child  who 
was  the  grantee  of  his  parent,  who 
owned  the  land  sold.  Code  1886, 
§§  1879,  1883,  1887,  1891." 

In  the  case  of  Wiley  v.  Ewing, 
47  Ala.  418,  it  is  said  that  where 
a    debtor    executes    two    or    more 


mortgages  on  the  same  tract  of  land 
at  different  times  to  different  per- 
sons, and  for  security  for  different 
debts,  the  junior  mortgagee  has  a 
right  to  redeem  from  the  senior 
mortgagee  by  paying  his  debt  with 
interests  and  costs.  This  right  is 
held  to  be  independent  of  the  statu- 
tory right  given  to  judgment  cred- 
itors ;  it  applies  generally  to  deed 
of  trust  to  secure  the  payment  of 
debts  and  to  mortgages  proper. 

1)1  California  a  junior  mortgagee 
who  is  not  made  a  party  to  a  suit 
for  foreclosure  of  a  prior  mort- 
gage, has  a  statutory  right  of  re- 
demption within  six  months  from 
the  date  of  the  sale  made  under  the 
decree  in  such  suit ;  and  has  also  the 
general  equitable  right  of  redemp- 
tion which  exists  independently  of 
the  statute.  If  made  a  party  to  the 
foreclosure  suit,  his  equitable  right 
of  redemption  is  barred,  but  he  re- 
deems under  the  statute.  See  Black 
v.  Gerichteu,  58  Cal.  56;  Horn  v. 
Jones,  28  Cal.  194;  Fink  v.  Mur- 
phy, 21  Cal.  108,  81  Am.  Dec.  149; 
Tuolumnie  Redemption  Co.  v.  Sedg- 
wick, 15  Cal.  516;  Gamble  v.  Voll, 
15  Cal.  507;  Kirkham  v.  Dttpont,  14 
Cal.  559;  San  Jose  Water  Co.  v. 
Lyndon,  as  sheriff,  etc.  124  Cal.  518, 
57  Pac.  481.  See  also  JVhite  v.  Cos- 
tigan,  134  Cal.  33,  66  Pac.  78. 

In  Connecticut  when  second 
mortgagee  applies  to  redeem  prior 
mortgage,  he  stands  in  the  same 
situation  as  the  mortgagor,  and  is 
entitled  to  the  benefit  of  all  pay- 
ments made  by  him,  and  of  all  rents 
received  by  the  prior  mortgagee, 
and  is  not  bound  to  pay  any 
greater  sum  than  the  mortgagor 
would  have  had  to  pay  if  the  ap- 
plication   had    been    made    by   him. 


1498 


MORTGAGE    FORECLOSURES. 


[§   1105 


maining-  after  satisfaction  of  the  prior  lien,  for  his  statutory 


Harrison  v.  IVysc,  24  Conn.  1,  63 
Am.  Dec.  151. 

In  those  cases  where  second 
mortgagees  have  acquired  by  fore- 
closure the  right  to  redeem  mort- 
gaged premises  have  such  right 
after  the  time  allowed  for  redemp- 
tion has  expired,  notwithstanding 
a  decree  of  foreclosure  obtained 
without  service  of  process  or  legal 
notice  to  them,  by  the  defendants, 
who  by  purchase  represents  the  in- 
terests of  the  first  mortgage.  Bank 
V.  Eldrcdgc,  28  Conn.  558,  7Z  Am. 
Dec.  688. 

In  Illinois,  a  junior  mortgagee 
may  redeem  from  the  first  mort- 
gage, and  have  the  property  sold 
on  foreclosure,  without  regard  to 
a  conveyance  of  the  mortgagor's 
equity  of  redemption,  made  to  the 
first  mortgagee,  after  the  execution 
of  the  junior  mortgage.  Rogers  v. 
Herron,  92  111.  583. 

In  those  cases  where  there  has 
been  a  foreclosure  proceeding  by 
the  prior  mortgagee,  and  the  subse- 
quent mortgagee  has  not  been 
served  with  process,  he  is  entitled 
to  redeem  from  the  sale  foreclosing 
the  first  mortgage,  and  the  pur- 
chaser under  such  a  sale  takes  the 
premises  subject  to  the  junior  mort- 
gagee's right  of  redemption.  See 
Morse  v.  Smith,  83  111.  396;  Hodgcn 
V.  Guttery,  58  111.  431. 

It  is  held,  in  the  recent  case  of 
Whitehead  v.  Hall,  148  111.  253,  35 
N.  E.  871,  that  a  junior  mortgagee 
of  an  equity  of  redemption  is  not 
deprived  of  the  right  to  redeem 
within  fifteen  months  as  a  "decree 
creditor"  under  111.  Rev.  Stat.  c. 
77,  §  20,  by  the  fact  that  he  is  a 
party  to  the  foreclosure  of  the 
senior  mortgage,  and  was,  by  the 
decree,    allowed    to    redeem    within 


twelve  months,  as  such  decree  ap- 
plies to  his  right  to  redeem  solely 
as  a  junior  mortgagee,  and  not  as 
a  decree  creditor.  See  also  Illinois 
National  Bank  v.  Trustees  of 
Schools,  111  111.  App.  189. 

In  Indiana,  where  a  mortgage  has 
been  foreclosed  by  the  senior  mort- 
gagee, without  making  the  junior 
mortgagee  a  party  to  the  foreclo- 
sure suit,  and  the  latter  brings  a 
bill  against  the  purchaser  to  redeem, 
he  is  required  to  pay  the  amount 
of  the  first  mortgage,  and  attorney's 
fees  when  provided  for  therein,  and 
also  amounts  paid  for  insurance  by 
the  senior  mortgagee  on  neglect  of 
the  mortgagor  to  keep  the  premises 
insured  as  required  by  the  mort- 
gage, but  he  is  not  bound  to  pay 
the  costs  of  the  foreclosure  suit. 
H  OS  ford  v.  Johnson,  74  Ind.  479. 

In  those  cases  where  the  holder 
of  a  junior  mortgage  has  foreclosed 
his  mortgage  w^ithout  making  the 
senior  mortgagee  a  party  to  the 
suit,  and  who  has  bought  in  the 
premises  on  sale  under  the  decree, 
has  a  right  to  redeem  the  mort- 
gaged premises  from  the  senior 
mortgagee,  though  the  senior  mort- 
gagee hay  have  foreclosed  his  mort- 
gage previously,  without  making  the 
holder  of  the  junior  mortgage  a 
party  to  the  suit,  even  though  the 
premises  have  been  sold  by  the 
sheriff  on  the  decree  and  bought  in 
by  the  senior  mortgagee.  See  Cat- 
terlin  v.  Armstrong,  79  Ind.  514; 
Hasselman  v.  McKernan,  50  Ind. 
441. 

/;;  Iowa,  the  holder  of  a  junior 
mortgage,  who  is  made  defendant 
in  a  suit  for  the  foreclosure  of  the 
senior  mortgage,  can  redeem,  after 
sale,  by  paying  the  amount  bid,  with 
interest,  within  the  time  allowed  by 


1105] 


REDEMPTION. 


1499 


right  to  redeem  is  not  thereby  destroyed,  but  still  exists  as  to 


statute,  notwithstanding  the  amount 
bid  by  the  senior  mortgagee  at  the 
sale  is  less  than  the  amount  of  the 
mortgage  debt.  Tut  tic  v.  Dewey,  44 
Iowa,  306. 

The  rule  that  a  junior  mortgagee, 
not  made  party  to  foreclosure  pro- 
ceedings of  a  senior  mortgagee, 
who  has  both  actual  and  construct- 
ive notice  of  the  rights  of  the  for- 
mer, may  foreclose  against  the 
mortgagor,  or  redeem  from  the  first 
mortgagee  or  his  assignee  or  the 
purchaser  at  the  foreclosure  sale,  is 
not  changed  by  statute  in  Iowa. 
Atuson  V.  Anson,  20  Iowa,  55,  89 
Am.  Dec.  514. 

But  where  such  junior  mortgagee 
seeks  to  redeem  a  portion  of  the 
property  sold  on  the  foreclosure  of 
the  senior  mortgagee,  he  must  ten- 
der the  amount  of  the  entire  mort- 
gage debt.  See  Knowles  v.  Rabbin, 
20  Iowa,  101 ;  Smith  v.  Shay,  62 
Iowa,  119,  17  N.  W.  444;  Street  v. 
Beal,  16  Iowa.  68,  85  Am.  Dec.  504 ; 
IVhife  V.  Hampton,  13  Iowa,  259; 
Hcimstreet  v.  Winnie,  10  Iowa,  430. 

Same — After  his  debt  has  been 
fully  satisfied,  a  junior  mortgagee 
has  no  right  to  redeem  from  a  prior 
sale  under  foreclosure  of  a  senior 
mortgage  to  which  he  was  not  a 
party.  McHenry  v.  Cooper,  27 
Iowa,  137. 

In  Kentucky,  a  junior  mortgagee 
or  incumbrancer,  or  the  holder  of 
the  equity  of  redemption,  not  made 
a  party  to  the  foreclosure  proceed- 
ings, is  not  barred  by  the  decree, 
and  will  be  allowed  to  redeem  the 
estate,  even  though  the  senior  mort- 
gagee had  no  notice  of  such  claim. 
But  if  he  is  made  a  party  to  the 
action,  and  fails  to  defend,  he  will 
be  barred.  Cooper  v.  Martin,  1 
Dana  (Ky.)  24. 


In  Michigan,  the  subsequent  mort- 
gagee of  a  portion  of  the  premises 
included  in  the  first  mortgage,  the 
other  portion  of  which  has  been 
conveyed,  may  be  permitted  to  re- 
deem from  the  first  mortgage,  and 
be  subrogated  to  all  rights  therein. 
/.  /.  Case  Threshing  Mach.  Co.  v. 
Mitchell,  74  Mich.  679,  42  N.  W. 
151. 

It  is  said,  in  Pritchard  v.  Kalama- 
zoo College,  82  Mich.  587,  47  N.  W. 
31,  that  an  assignee  of  a  recorded 
second  mortgage,  although  failing 
to  record  his  assignment  until  after 
the  first  mortgagee,  without  actual 
knowledge  of  the  assignment  and 
on  the  faith  of  the  record  and  the 
representation  of  the  second  mort- 
gagee, to  whom,  subsequent  to  the 
assignment,  the  mortgagor  conveyed 
the  land,  that  his  mortgage  had 
been  extinguished  by  merger,  re- 
leased his  first  mortgage  and  took 
a  third  mortgage  on  the  land  for 
the  unpaid  principal  and  interest 
due  on  the  first, — is,  where  he 
records  his  assignment  before  com- 
mencement of  proceedings  to  fore- 
close the  third  mortgage,  to  which 
he  is  not  made  a  party,  entitled  to 
redeem. 

Same — A  second  mortgagee  has 
a  right  to  redeem  a  prior  mortgage, 
and  this  right  cannot  be  cut  olif  or 
prejudiced  by  arrangements  between 
the  holder  of  the  first  mortgage  and 
the  mortgagor,  for  an  extension  of 
time  to  pay  it.  Lamb  v.  Jeffrey, 
41  Mich.  719,  3  N.  W.  204:  Soger 
V.  Tuppcr.  35  Mich.  134. 

Such  mortgagee's  right  cannot  be 
affected  by  a  foreclosure  decree  and 
sale  under  the  prior  mortgage, 
where,  at  the  time  of  such  decree 
and  sale,  no  party  to  the  foreclo- 
sure suit  in  any  way  represented,  or 


1500 


MORTGAGE    FORECLOSURES. 


[§  1105 


any  portion  of  his  demand  not  satisfied  by  the  application  of 


had  any  right  or  interest  in,  such 
subsequent  mortgage.  Avery  v. 
Ryerson,  34  Mich.  362. 

But  his  right  to  redeem  is  barred 
if  he  allows  the  foreclosure  to  be- 
come absolute.  Cants  v.  Tolas,  40 
Mich.  725. 

hi  Minnesota  it  is  said  that  when, 
upon  foreclosure  by  advertisement 
of  a  mortgage  embracing  two  par- 
cels of  land,  such  parcels  have 
been  separately  sold  to  the  mort- 
gagee, at  a  separate  price  for  each, 
a  junior  mortgagee  of  one  of  the 
parcels  can  redeem  from  the  sale 
that  parcel  only  which  is  embraced 
in  his  mortgage.  The  rule  is  the 
same  when  such  junior  mortgagee 
has  foreclosed  his  mortgage  by  ad- 
vertisement, and  has  purchased,  at 
the  foreclosure  sale,  the  parcel  em- 
braced in  his  mortgage.  Tinkcom 
V.  Lewis,  21  Minn.  132. 

In  Missouri  the  right  of  the 
holder  of  a  junior  mortgage  to  re- 
deem before  the  foreclosure  of  a 
senior  mortgage  is  not  affected 
where  the  mortgagee  in  the  senior 
mortgage  purchases  the  equity  of 
redemption.  Wilson  v.  Vanstone. 
112  Mo.  315,  20  S.  W.  612. 

In  Nebraska  it  is  held  that  the 
right  of  a  junior  incumbrancer  who 
was  not  made  a  party  to  a  suit  to 
foreclose  a  mortgage  is  to  redeem 
the  senior  incumbrancer,  not  to  re- 
deem the  land.  The  owner  of  the 
fee  redeems  the  land  itself.  The 
junior  incumbrancer  is  not  entitled 
to  the  estate,  but  to  an  assignment 
of  the  securities.  Renard  v.  Brown, 
7  Neb.  449. 

In  New  Jersey  any  subsequent 
mortgagee  may  redeem  a  first  mort- 
gage and  bring  all  the  land  to  a 
sale  under  the  same  decree,  and 
thus    enable   the   court   to   marshal 


the  fund,  and  hence  cannot  require 
an  intermediate  mortgagee  to  take 
any  particular  step  toward  so  doing. 
Lambertville  Nat.  Bank  v.  Mc- 
Crcady  Bag  &  Paper  Co.  (N.  J. 
Ch.)    15  Atl.  388,  1  L.R.A.  334. 

In  Hill  V.  White,  1  N.  J.  Eq.  (1 
Saxt.)  435,  where  the  first  mort- 
gagee purchased  the  mortgaged 
premises  at  a  sheriff's  sale,  took 
possession  and  received  the  rents 
and  profits,  the  second  mortgagee 
was  allowed  to  redeem,  upon  paying 
the  principal  and  interest  of  the 
first  mortgage,  together  with  the 
costs  incurred  in  obtaining  posses- 
sion, and  deducting  therefrom 
what  with  reasonable  diligence, 
might  have  been  received  by  the 
first  mortgagee  while  in  possession 
of  rents  and  profits. 

In  New  York  a  junior  mortgagee 
may,  either  by  payment  or  tender 
of  the  amount  due,  redeem  prem- 
ises from  the  lien  of  a  senior  mort- 
gage. Dings  v.  Parshall,  7  Hun. 
(N.  Y.)  522.  See  Bloomingdale  v. 
Barnard,  14  N.  Y.  460.  In  those 
cases  where  a  junior  mortgagee 
who  has  not  been  made  a  party  to 
the  foreclosure  of  a  prior  mort- 
gage is  entitled  in  redeeming  there- 
from to  all  the  rights  which  he 
might  have  asserted  in  the  foreclo- 
sure suit  had  he  been  made  a  party. 
Denton  v.  Ontario  County  Nat. 
Bank,  44  N.  Y.  S.  R.  33,  18  N.  Y. 
Supp.  38. 

In  Oregon  the  code  provides  that 
subsequent  incumbrancers  must  be 
made  parties  thereto,  and  that  the 
decree  therein  shall  ascertain  and 
determine  the  amount  and  priority 
of  the  liens  of  all  such  parties,  and 
direct  that  the  premises  be  sold  and 
the  proceeds  applied  to  the  satis- 
faction of  the  debts  secured  there- 


§  1105] 


REDEMPTION. 


1501 


such  surplus  proceeds^^    But  in  Indiana  it  is  held  that  a  junior 


by  in  the  order  specified  therein ; 
and  that  process  to  enforce  such 
decree  should  issue  upon  the  joint 
application  of  the  parties  or  the 
order  of  the  court.  The  court  held 
that  a  sale  in  pursuance  of  such 
decree  was  a  sale  upon  the  process 
of  each  of  the  lien  creditors  pro- 
vided for  in  the  decree,  that  it  ex- 
tinguished their  liens,  and  that 
therefore  neither  of  them  had  a 
right  to  redeem  the  premises  from 
the  purchaser  at  such  sale  under 
§  297  of  the  Code,  which  gives  the 
right  of  redemption  only  to  a  cred- 
itor having  a  lien  upon  the  property 
sold.  Lauriat  v.  Strattoii,  6  Sawy. 
C.  C.  339. 

Same — Such  subsequent  incum- 
brancers must  be  made  parties,  and 
that  the  decree  in  a  suit  to  enforce 
the  lien  shall  ascertain  the  amount 
and  privity  of  the  liens  of  all  such 
parties,  and  direct  that  the  premises 
be  sold  and  the  proceeds  applied  to 
the  satisfaction  of  the  debts  secured 
thereby  in  the  order  specified  there- 
in. Hovenden  v.  Knott,  12  Oreg. 
267,  7  Pac.  30;  Chavener  v.  Wood. 
2  Oreg.  182;  Lauriat  v.  Stratton,  6 
Sawy.  C.  C.  339,  Oreg.  Civ.  Code, 
§§  410,  414. 

In  Texas,  under  Rev.  Stat.  art. 
2980,  invalidating  the  whole  rate  of 
interest  on  a  usurious  contract,  a 
junior  mortgagee  or  a  purchaser 
under  the  mortgage  may  redeem 
from  a  prior  usurious  incumbrance 
by  paying  only  so  much  of  the  debt 
as  is  recognized  by  law.  Moloney 
V.  Earheart,  81  Tex.  280.  16  S.  \V. 
1030. 

In  Vermont  a  subsequent  mort- 
gagee permitting  the  grantor  of  the 
mortgagor  to  remain  in  possession. 


has  no  greater  claim  than  he  would 
have  had  if  the  mortgagor  had  re- 
mained in  possession,  and  must 
stand  upon  his  rights  under  his  own 
mortgage.  Walker  v.  King,  44  Vt. 
601 ;  Downer  v.  Wilson,  Z:i  Vt.  1. 

hi  Wisconsin  it  is  held  that  the 
assignee  of  a  second  mortgage  may 
maintain  a  bill  for  redemption 
against  the  assignee  of  a  first  mort- 
gage, or  he  may,  in  a  bill  of  fore- 
closure, make  the  assignee  of  the 
first  mortgage  a  party  and  obtain 
the  usual  decree  of  redemption 
against  him.  Farwell  v.  Murphy, 
2  Wis.  533. 

In  England  second  mortgagee  of 
real  estate  and  a  reversionary  in- 
terest in  personalty  as  security  for 
a  debt,  and  takes  a  third  mortgage 
of  the  real  estate  only  for  another 
debt,  and  transfers  the  latter  mort- 
gage to  the  holder  of  a  first  mort- 
gage on  both  the  real  estate  and 
personalty,  and  at  the  same  time  re- 
leases the  real  estate  from  the  sec- 
ond mortgage,  is  entitled  to  redeem 
both  the  personalty  and  real  estate 
on  payment  of  the  sum  secured  by 
the  first  mortgage,  to  be  appor- 
tioned between  the  real  estate  and 
the  personalty  according  to  their 
respective  values,  and  is  entitled  to 
have  a  conveyance  of  the  personalty 
absolutely,  and  of  the  real  estate  to 
be  held  as  security  for  such  part  of 
the  money  paid  as  shall  be  appor- 
tioned to  it.  Flint  V.  Howard  (C. 
A.)    (1893)  2  Ch.  54. 

See  Smith  v.  Green,  1  Coll.  555; 
Ramsbottom  v.  Wallis,  5  L.  J.  N.  S. 
Ch.  92;  Palk  v.  Clinton,  12  Ves.  59, 
8  Rev.  283. 

^^Frinlc  V.  Murphy,  21  Cal.  108, 
81  Am.  Dec.  149. 


1502  MORTGAGE    FORECLOSURES.  [§    1105 

mortgagee  who  is  made  defendant  in  a  suit  to  foreclose  tlie 
senior  mortgage,  and  whose  hen  is  provided  for  in  the  decree 
which  directs  a  sale  of  the  property  and  a  distribution  of  the 
proceeds  among  all  the  lien-holders  in  the  order  of  priority, 
cannot  redeem  from  the  sale  under  statutes  which  do  not  permit 
a  judgment  creditor  to  redeem  from  his  own  sale.'^ 

The  fact  that  the  junior  mortgagee  gives  onh-^  a  nominal 
consideration,'''*  or  no  consideration  at  all,'*  does  not  affect  the 
junior  mortgagee's  right  to  redeem.  And  it  is  said  by  the 
supreme  court  of  Illinois,  in  the  case  of  Morse  v.  Smith,'^ 
that  a  mortgagee  of  several  tracts  of  land,  a  portion  of  which 
are  subject  to  a  prior  mortgage,  has  a  right  to  redeem  from 
a  sale  under  such  prior  mortgage,  without  show^ing  that  it  is 
necessary  to  protect  the  security  of  his  mortgage  debt,  and 
that  the  other  tracts  in  his  mortgage  are  not  of  sufificient  value 
to  pay  his  mortgage  debt.  The  reason  for  this  rule  is  the  fact 
that  the  mortgagee  is  under  no  obligation  to  take  any  risk  as 
to  the  adequacy  of  his  security.  In  the  case  of  Campbell  v. 
MsElvey  '''^  it  is  said  that  a  mortgagee  of  a  leasehold  will  be 
permitted  to  redeem  the  premises  from  forfeiture,  and  the  sum 
he  pays  in  such  case  will  be  a  preferable  charge,  in  redemption 
account,  against  the  lessee  and  all  claiming  under  him. 

The  supreme  court  of  Alabama,  in  the  case  of  Owen  v.  Kil- 
patrick,'®  say  that  a  mortgage,  cannot  redeem  the  mortgaged 

"^^  Horn  V.  Indianapolis  Nat.  a  mortgagee  who  gave  no  con- 
Bank,  125  Ind.  381,  25  N.  E.  558,  9  sideration  for  the  mortgage,  and 
L.R.A.  676,  21  Am.  St.  Rep.  231.  who  assigned  it  as   security   for  a 

'*  In     the     case     of     Bovcy     Dc  debt   of   the  mortgagor  to  the   as- 

Laittre  Lumber  Co.  v.    Tucker,  48  signee,   has  no  interest  which  will 

Minn.  223,  50  N.  W.  1038,  the  mori-  authorize  a  redemption  of  property 

gagee  in  a  mortgage  for  $2  made  by  of    the    mortgagor    sold   under   an- 

the   owner   of   lands    sold    under    a  other  mortgage,  unless  by  reason  of 

prior  mortgage,  on  the  last  day  for  payments  made  to  the  holder  of  the 

redemption    by    him.    acquires    the  mortgage  which  had  been  assigned, 

right  to  file  notice  and  redeem  from  "^^83  111.  396. 

the  sale.  ''2   Disn.    (Ohio)    574. 

'5  In  Skinner  v.  Young,  80  Iowa.  '896  Ala.  421,  11  So.  476. 
234,  45  N.  W.  889,  it  is  said  that 


§     1107]  REDEMPTION.  1503 

land  from  one  who  has  himself  redeemed  it  from  the  pur- 
chaser at  a  sale  to  foreclose  a  vendor's  lien,  under  the  statute 
of  that  state  '^  permitting  one  judgment  creditor  to  redeem 
from  another  upon  tender  or  payment  of  the  amount  given 
by  the  latter,  and  ten  per  cent,  per  annum  interest  thereon. 
And  it  is  said  in  the  case  of  Whipperman  v.  Dunn.^°  that  a 
mortgagee  who  assigns  all  his  interest  in  the  certificate  of 
purchase  of  the  mortgaged  premises  at  a  sale  under  foreclosure 
is  thereby  divested  of  all  title  to  the  debts  secured  or  intended 
to  be  secured  by  the  mortgage;  and  he  cannot  thereafter  main- 
tain an  action  to  reform  the  mortgage. 

§  1106.  Same — Senior  may  not  redeem. — A  senior 
mortgagee,  even  though  he  has  barred  all  other  interests  by  a 
foreclosure,  is  not  entitled  to  redeem  the  mortgaged  premises 
from  a  purchaser  under  foreclosure  of  a  junior  mortgage,  but 
he  may  take  out  a  precept  and  sell  the  land  to  satisfy  his 
decree,  regardless  of  the  previous  sale.^^ 

§  1107.  Mortgagor  may  redeem. — The  mortgagor  has 
the  paramount  and  absolute  right  to  redeem  the  mortgaged 
premises  from  the  mortgage  at  any  time  before  the  sale  there- 
of,*^ and  after  a  sale  made  in  all  those  cases  where  he  has  not 
been  made  a  party  to  the  foreclosure  proceedings,*^  and  he  has 
not  parted  with  his  interest  in  the  mortgaged  premises,  lost 
it  by  laches,  or  it  is  barred.** 

'^  Ala.  Code,  §  1885.  A  mortgagor  who   has  conveyed 

80  124  Ind.  349,  24   N.   E.    166.  the    lands    to    third    person    cannot 

81  Goodman  v.  White,  26  Conn.  exercise  any  election  as  to  redemp- 
317;  Dawson  v.  Overmeycr,  141  Ind.  tion  from  foreclosure  sale.  Amer- 
438,  40  N.  E.  1065.  See  also  Ktintz-  icon  Freehold  Land  Mortg.  Co.  v. 
man  v.  Smith,  77  N.  J.  Eq.  30.  75  SewcU,  92  Ala.  163,  9  So.  143,  13 
Atl.  1009.  L.R.A.    299;    Milhr   v.    Green,    138 

82  Wylie  V.  Welch,  51  Wis.  351,  111.  565,  28  N.  E  837,  aff'g  Z7  111. 
S  N.  W.  207.    See  ante,  §  1082.  App.  631. 

^^  ^tna  Life  Ins.  Co.  v.  Stryker,  But  an  owner  of  land  who,  after 

38  Ind.  App.  312,  72)  N.  E.  953.  conveying  it  by  deed  of  trust  to  se- 


1504 


MORTGAGE    FORECLOSURES. 


[§  1107 


This  right  of  the  mortgagor,  or  those  claiming  under  him, 
is  not  affected  or  prejudiced  by  the   fact  that  there   is  no 


cure  debts,  conveys  it  in  fee  sub- 
ject to  the  trust  deed,  expressly  re- 
serving a  lien  for  the  purchase 
money,  or  his  administrator,  can  re- 
deem from  foreclosure  of  the  deed 
of  trust.  Pearcy  v.  Tate,  91  Tenn. 
478,  19  S.  W.  323. 

A  mortgagor  who  voluntarily 
conveys  the  premises  to  the  mort- 
gagee in  full  satisfaction  of  the 
mortgage  debt  will  not  be  allowed 
to  assert  an  equity  of  redemption 
after  the  property  has  greatly  ap- 
preciated in  value  in  the  mort- 
gagee's hands,  merely  because  his 
notes,  although  canceled,  are  not 
surrendered  to  him.  Miller  v. 
Green,  Z7  111.  App.  631,  aff'd  in  138 
111.  565,  28  N.  E.  837. 

84  See  Hall  v.  Arnott,  80  Cal.  348, 
22  Pac.  200;  Randall  v.  Duff,  79 
Cal.  115,  19  Pac.  532,  3  L.R.A.  754, 
21  Pac.  610;  Benham  v.  Rowe,  2 
Cal.  387,  56  Am.  Dec.  342;  Colwell 
V.  Warner,  36  Conn.  224,  232; 
Walker  v.  Carlton,  97  111.  532; 
Harms  v.  Palmer,  61  Iowa,  483,  16 
N.  W.  574;  Teirault  v.  Labbe,  155 
Mass.  497,  30  N.  E.  173;  Merritt 
V.  Hosnier,  77  Mass.  (11  Gray)  276, 
71  Am.  Dec.  713;  Wilson  v.  Troup, 
2  Cow.  (N.  Y.)  195,  14  Am.  Dec. 
458;  Graves  v.  Plaiupden  Fire  Ins. 
Co.  92  Mass.  (10  Allen)  281;  Parks 
V.  Allen,  42  Mich.  482,  4  N.  W.  227 
Dickerson  v.  Hayes,  26  Minn.  100 
Thompson  v.  Foster,  21  Minn.  319 
Hall  V.  Hall,  46  N.  H.  240;  Pearcy 
V.  Tate,  91  Tenn.  478,  19  S.  W.  323; 
Ward  V.  Seymour,  51  Vt.  320; 
Wylie  v.  Welch,  51  Wis.  351,  8  N. 
W.  207. 
In  Walker  v.  Carlton,  97  111.  582, 


A  agreed  to  lend  B  $5,000  to  be  se- 
cured by  note  on  six  months  and 
deed  of  trust,  which  were  prepared, 
delivered,  and  the  deed  of  trust  re- 
corded, and  a  warrant  of  attorney 
given  to  confess  judgment.  On  the 
day  following,  B  went  to  A  for 
the  money,  but  received  $3,000  only 
for  which  he  gave  a  note  on  thirty 
days,  and  a  warrant  of  attorneys  to 
confess  judgment  thereon.  After 
eight  months  B  having  paid  noth- 
ing, the  land  was  sold  under  the 
trust  deed,  the  notice  of  sale  stating 
that  the  $5,000  note  was  held  as  col- 
lateral security  for  the  $3,000  note, 
and  A  bid  in  the  premises  for  $2,- 
600.  Eight  months  later,  B  filed  his 
bill  to  set  aside  the  sale,  and  to  re- 
deem upon  payment  of  $3,000.  The 
court,  by  a  majority  opinion,  held 
that  he  was  entitled  to  redeem. 

Mortgage  deed  provided  that  the 
mortgagor  should  keep  the  prem- 
ises insured  for  the  mortgagee's 
benefit.  The  mortgagor  according- 
ly procured  insurance  thereon,  the 
policy  providing  that  no  sale  of  the 
property  should  affect  the  right  of 
the  mortgagee  to  recover  in  case  of 
loss.  After  the  assignment  by  the 
mortgagor  of  his  interest,  a  loss  oc- 
curred. The  insurance  company 
paid  the  amount  of  the  policy  to 
the  mortgagee,  and  took  from  him 
an  assignment  of  the  mortgage  and 
policy.  The  court  held  that  the 
holder  of  the  equity  of  redemption 
might  redeem,  upon  paying  to  the 
insurance  company  the  balance  due 
upon  the  mortgage  over  and  above 
the  amount  due    upon    the    policy. 


§     1107]  REDEMPTION.  1505 

judgment  for  deficiency;*^  the  mortgagee  has  foreclosed  for 
more  than  is  due ;  *°  has  purchased  the  mortgaged  premises 
under  a  power  in  the  mortgage,"  has  conveyed  the  mortgaged 
premises  in  whole  or  in  part,®*  or  is  a  tenant  in  common  with 
the  mortgagor.  He  will  be  required  to  pay  the  full  amount 
due,*^  will  not  be  chargeable  with  rent,^°  and  will  not  be 
entitled  to  an  account  of  the  rents  and  profits  during  his  occu- 
pation where  he,  after  entry  for  breach  of  condition,  occupies 
the  mortgaged  premises  under  an  agreement  to  pay  a  stipu- 
lated rent,  which  he  neglects  to  do.®^ 

And  the  owner  of  an  equity,  who  is  out  of  possession,  may 
bring  a  bill  in  equity  to  redeem  against  the  mortgagee  and  the 
tenant  in  possession,  notwithstanding  the  pendency  of  a  suit 
at  law  between  the  mortgagee  and  tenant  for  the  possession.^^ 

In  those  cases  where  the  mortgaged  land  has  been  con- 
veyed without  consideration,  though  by  conveyance  purport- 
ing to  be  for  a  valuable  consideration,  under  a  power  of  attor- 
ney to  sell  and  convey,  and  the  grantee  gives  a  mortgage  upon 
it,  parties  who  have  succeeded  to  the  right  of  the  original 
owner  upon  his  death  are  entitled  to  redeem  from  the  mort- 
gage.®* And  a  mortgagor's  right  of  redemption  is  not  barred 
where  the  mortgagee,  immediately  after  the  expiration  of  the 

Graves  v.  Hampden,  &c.,  Ins.  Co.  ^^  Dickerson  v.  Hayes,  26  Minn. 

92  Mass.  (10  Allen)  281.  100,  1  N.  W.  834. 

85  Thus  it  is  said  in  Hall  v.  Ar-  87  Benham  v.  Rowe,  2  Cal.  387,  56 

nott,  80  Cal.  348,  22  Pac.  200,  that  Am.  Dec.  342. 

since    the    adoption    of    California  88  Wilson  v.   Troup,  2  Cow.    (N. 

Civil  Code,  §  726,  a  mortgagee  who  Y.)    195,  14  Am.  Dec.  458. 

forecloses  a  deed  absolute  in  form,  89  See  post,  §    1191. 

but  in  fact  only  a  mortgage,  with-  9°  Merritt  v.  Hosmer,    77    Mass. 

out  at  the  same  time  foreclosing  an-  (11  Gray)  276,  71  Am.  Dec.  713. 

other  deed  given  to  secure  the  same  ^i  Merritt  v.  Hosmer,    77    Mass. 

indebtedness,     but     upon     different  (11  Gray)  276,  71  Am.  Dec.  713. 

property,    not   being    entitled    to    a  92  Hall  v.  Hall,  46  N.  H.  240. 

personal    judgment    for  deficiency,  ^^  Randall  v.  Duff,  79  Cal.  115,  19 

the  right  of  the  mortgagor   is    not  Pac.  532,  3  L.R.A.  734,  21  Pac.  610. 
affected  by  the  fact  that  no  judg- 
ment    for     deficiency     has     been 
docketed. 

Mortg.  Vol.  II.— 95. 


1506  MORTGAGE    FORECLOSURES,  [§     1108 

time  limited  for  payment  by  a  decree  in  a  suit  to  redeem,  fix- 
ing the  time  and  amount  of  payment,  and  enjoining  the 
mortgagee  from  foreclosure  until  a  further  order,  begins  pro- 
ceedings, without  first  jjrocuring  the  dismissal  of  the  bill  to 
redeem,  to  foreclose  under  the  power  of  sale  in  his  mortgage, 
and  purchases  at  his  own  sale.^* 

It  has  been  said  that  the  payment  of  a  decree  of  foreclo- 
sure by  a  junior  mortgagee  operates  as  an  assignment  of  the 
former  mortgage  to  him.  and  leaves  the  mortgagor  a  right 
of  redemption.^*  But  the  supreme  court  of  Connecticut,  in 
the  case  of  Colwell  v.  Warner,^^  say  that  where  a  second  mort- 
gagee has  foreclosed,  and  subsequently  redeems  the  prior 
mortgage,  as  he  has  a  right  to  do,  paying  the  debt  as  his  own, 
the  mortgagor  has  no  right  to  redeem  the  first  mortgage,  if 
his  claim  is  resisted  by  the  second  mortgagee.  The  second 
mortgage  conveys  all  the  mortgagor's  interest.  The  foreclo- 
sure removes  the  condition  and  converts  the  conveyance  into 
an  absolute  one,  though  the  thing  conveyed  remains  the  same. 
Tt  seems,  however,  that  where  a  part  only  of  the  mortgage  debt 
is  transferred,  to  collect  which  the  transferee  sells  the  land 
under  foreclosure,  and  the  mortgagee  redeems,  he  does  not 
thereby  acquire  any  additional  rights,  and  the  mortgagor  will 
be  entitled  to  redeem  on  paying  the  amount  for  which  the 
land  was  sold,  with  costs.^' 

§  1108.  Mortgagor   and   wife — May   redeem,   when. — 

The  owner  of  a  homestead  is  entitled  to  redeem  the  lien  of 

9*  Tetrault  v.  Labbe,    155    Mass.  amount  of  the  debt  with  interest  at 

497,  30  N.  E.  173.  the  stipulated  rate,  and  the  costs  of 

Where  a  bill  to  enforce  the  dis-  foreclosure,  with  interest,  but  with- 

charge    of    a    mortgage    had    been  out  the  attorney  fee  provided  for  in 

filed  before  the  time    for    redemp-  the  mortgage.     Parks  v.  Allen.  42 

tion   had  expired,    but    after    fore-  Mich.  482,  4  N.  W.  227. 

closure  was  begun,  and  it  was  held  ^^  lizard  v.  Seymour,  51  Vt.  320. 

that  the  complainant  mortgagor  was  ^^  36  Conn.  224,  232. 

not  entitled  to  discharge,  he  was  al-  ^"^  Harms  v.  Palmer,  61  Iowa,  483, 

lowed    to    redeem    on    paying    the  16  N.  W.  574. 


§    nil]  REDEMPTION.  1507 

a  mortg-age  on  the  land  occupied  and  set  apart  as  such ; '® 
consequently  a  mortgagor  and  wife  having  a  homestead, 
and  she  an  inchoate  right  of  dower  in  the  premises,^'  they 
may  maintain  a  bill  to  redeem,  although  not  entitled  to  an 
assignment  of  the  mortgage.* 

§  1109,  Mortgagors — Joint — Redemption  by. — In  the 
Case  of  Commercial  Real  Estate  and  Building  Association 
V.  Parker,^  it  is  held  that  one  of  two  joint  mortgagors  can- 
not, without  authority  from  the  other,  make  an  offer  to  re- 
deem which  will  support  an  action  for  redemption  by  both. 

§  1110.  Partner  may  redeem. — The  interest  of  a  part- 
ner in  lands  mortgaged  by  the  firm  is  sufficient  to  enable  him 
to  redeem  from  the  mortgage  under  a  statute '  authorizing 
redemption  by  the  mortgagor  or  any  person  lawfully  claim- 
ing or  holding  under  him,  full  equity  jurisdiction  being  con- 
ferred by  the  statute  upon  the  court.* 

The  supreme  judicial  court  of  Massachusetts,  in  the  case 
of  Emerson  v.  Atkinson,^  say  that  an  unexecuted  agreement 
to  compromise,  although  it  postpones  the  adjustment  of  the 
rights  of  the  parties  thereto,  does  not  cut  off  the  right  of  one 
of  them  in  a  suit  against  the  other  to  establish  a  partnership 
to  redeem  from  mortgages  held  by  other  defendants,  although 
the  court  may  protect  their  rights  by  interlocutory  orders  as 
to  the  payment  of  the  money  on  the  mortgages,  or  may  direct 
a  sale  under  powers  in  the  mortgage. 

§  1111.  Persons  in  interest  not  made  parties. — We  have 
heretofore  seen  that  it  is  necessary  to  make  parties  to  fore- 

^»  Butts    V.    Broughton,    72  Ala.  2  84  Ala.  298,  4  So.  268. 

294;  Kirby  v.  Reese,    69    Ga.  452;  3  As  Mass.  Stat.  1877,  c.  178. 

Erwin  v.  Blanks,  60  Tex.  583;  Cos-  *  Emerson  v.  Atkinson.  159  Mass. 

borne  v.  Inglis.  1  Ark.  606.  356,  34  N.  E.  516. 

99  See  post,  §  1133.  5  i59  Mass.  356,  34  N.  E.  516 

^  Lamb   v.    Montague,    112   Mass. 
352. 


1508 


MORTGAGE  FORECLOSURES. 


[§  1112 


closure  proceedings  all  persons  having  an  interest  in  the  land 
in  order  to  cut  off  their  equity  of  redemption,^  hence  all 
parties  interested  in  the  premises,  who  were  not  served  with 
process,  may  redeem  from  a  sale  under  decree  of  foreclosure, 
just  the  same  as  if  no  such  decree  had  been  madeJ 

§  1112.  Purchaser — Subsequent  purchaser. — Where  a 
person  takes  a  deed  with  notice  of  a  prior  mortgage  under 
such  circumstances  that,  as  against  such  mortgage,  he  can 
not  be  regarded  as  a  bona  fide  purchaser,  he  and  his  privies 
will  be  entitled  to  redeem  from  such  mortgage,®  and  this 
right  can  be  cut  off  only  by  a  proper  foreclosure,^  by  laches, 
estoppel  in  pais,^°  or  barred  in  the  regular  way;  ^^  a  decree  of 
foreclosure  in  a  suit  to  which  such  purchaser  or  his  privies 
were  not  parties,  will  not  affect  the  right  of  redemption.'^ 


^  See  ante,  136,  et  seq. 

''Wiley  V.  Ewing,  47  Ala.  418; 
Hodgen  v.  Guttery,  58  111.  431 ; 
Strang  v.  Allen,  44  111.  422;  Smith 
V.  Sinclair,  10  111.  108;  Nesbit  v. 
Hanway,  87  Ind.  400;  Holmes  v. 
Bybec,  54  Ind.  262;  Bunce  v.  West, 
62  Iowa,  80,  17  N.  W.  179;  Gower 
V.  Winchester,  33  Iowa,  303;  Pratt 
V.  Freat,  13  Wis.  462;  Murphy  v. 
Farwell,  9  Wis.  102;  Farwell  v. 
Murphy,  2  Wis.  533 ;  Noyes  v.  Hall, 
97  U.  S.  34,  34  L.  ed.  909 ;  Thomson 
V.  Dean,  74  U.  S.  (7  Wall.)  342, 
sub  nom.  Dean  v.  Nelson,  19  L.  ed. 
94.  See  ^tna  Life  Ins.  Co.  v. 
Stryker,  38  Ind.  App.  312,  78  N.  E. 
245. 

In  Thomson  v.  Dean,  74  U.  S. 
(7  Wall.)  342;  sub  nom.  Dean  v. 
Nelson,  19  L.  ed.  94,  parties  not 
notified  of  proceedings  to  foreclose, 
taken  during  the  late  civil  war, 
while  they  were  within  the  lines  of 
the  enemy,  were  allowed  to  redeem 


on  condition  of  the  payment  of 
principal  and  interest  in  full. 

The  supreme  court  of  Indiana,  in 
the  case  of  Holmes  v.  Bybce,  34 
Ind.  262,  say  that  under  the  statute 
of  that  state  (2  Gav.  &  H.  251)  pro- 
viding for  the  redemption  of  real 
property  sold  on  execution  or  order 
of  sale,  &c.,  does  not  cut  off  or  af- 
fect any  right  of  redemption  exist- 
ing by  the  general  principles  of  law, 
and  held  by  one  who  was  not  a 
party  to  the  "judgment,  decree,  or 
other  judicial  proceedings,"  on 
which  the  sale  was  made. 

^  Stone  V.  Welling,  14  Mich.  514. 

9  See  ante,  §  1055. 

10  See  ante,  §  1061. 

11  See  post,  chap.  xlvi. 

12  See  Smith  v.  Connor,  65  Ala. 
371;  Dtmlap  v.  Wilson,  32  111.  518; 
Jackson  V.  Warren,  32  111.  335 ; 
Hiird  V.  Case,  32  111.  45,  83  Am. 
Dec.  249;  Ohling  v.  Lintgens,  32 
111.  24. 


§  1113] 


REDEMPTION. 


1509 


But  when  subsequent  purchasers  or  incumbrancers  ^^  file  a 
bill  in  equity  against  the  lirst  mortgagee  and  a  purchaser  under 
him,  asking  an  account  and  redemption,  and  not  denying  that 
there  is  a  balance  due  on  the  mortgage  debt,  they  must  make 
a  tender  in  the  bill,  or  offer  to  pay  whatever  balance  is  found 
due.^* 

§  1113.  Same — Before  foreclosure. — A  purchaser  of  the 
equity  of  redemption  from  the  mortgagor  prior  to  the  insti- 
tution of  foreclosure  proceedings,  succeeds  to  all  the  rights  of 
the  mortgagor,^^  and  where  not  made  a  party  to  the  proceed- 
ings a  foreclosure  and  sale  of  the  mortgaged  premises  does 
not  affect  his  right  of  redemption.^®  Such  purchaser  from  the 
mortgagee,  whether  of  the  whole  or  only  a  portion  of  the 
mortgaged  premises,  must  pay  the  whole  mortgage  debt," 
even  though  the  mortgagor  has  obtained  a  certificate  of  dis- 


13  See  post,  §  1123. 

^^  Smith  V.  Connor,  65  Ala.  371. 
See  post,  §  1219. 

15  See  Allen  v.  Swoope,  64  Ark. 
576,  44  S.  W.  78.  Where  a  mort- 
gagee entered  upon  land  to  fore- 
close a  mortgage  in  which  the  mort- 
gagor's wife  had  not  joined,  but 
did  not  take  possession  of  the 
house,  nor  receive  rent  therefor, 
she  having  continued  in  possession 
of  the  house,  claiming  it  as  a  home- 
stead, on  a  bill  in  equity  to  redeem, 
brought  by  an  assignee  of  the 
equity  of  redemption,  the  court  held 
that  the  mortgagee  was  not  ac- 
countable for  the  rent  of  the  house. 
Taft  V.  Stetson,  117  Mass.  471. 

^^  Moore  v.  Anders,  14  Ark.  678, 
60  Am.  Dec.  537 ;  Boggs  v.  Fowler, 
16  Cal.  559,  76  Am.  Dec.  561; 
Goodenow  v.  Ewer,  16  Cal.  461,  76 
Am.  Dec.  540;  Whitney  v.  Higgins, 
10    Cal.    547,    70    Am.    Dec.    748; 


Bradley  v.  Snyder,  14  111.  263,  58 
xA.m.  Dec.  564;  Frische  v.  Kramer's 
Lessee,  16  Ohio,  125,  47  Am.  Dec. 
368;  Childs  v.  Childs,  10  Ohio  St. 
339,  75  Am.  Dec.  512;  Clark  v.  Rey- 
burn,  75  U.  S.  (8  Wall.)  321,  19 
L.  ed.  354;  Livingston  v.  New 
England  Mortgage  Security  Co.  11 
Ark.  379,  91  S.  W.  752;  Licata  v. 
de  Corte,  50  Fla.  563,  39  So.  58. 

'^'^  Douglass  v.  Bishop,  21  Iowa, 
216;  Knowles  v.  Rablin,  20  Iowa, 
104;  Street  v.  Beal,  16  Iowa,  68,  85 
Am.  Dec.  504;  Wood  v.  Goodwin, 
49  Me.  260,  11  Am.  Dec.  259 ;  John- 
son V.  Candage,  31  Me.  28;  Smith  v. 
Kelly,  21  Me.  237,  46  Am.  Dec. 
595  ;  Gibson  v.  Crehore,  22  Mass.  (5 
Pick.)  146;  Taylor  v.  Porter,  1 
Mass.  355 ;  Childs  v.  Childs,  10  Ohio 
St.  339,  75  Am.  Dec.  512.  Compare 
Dukes  V.  Turner,  44  Iowa,  579.  See 
post,  §  1171. 


1510  MORTGAGE    FORECLOSL^RES.  [§     1114 

charge   in  bankruptcy-     The   certificate   only   discharges   the 
mortgagor  from  personal  liability  upon  the  debt." 

In  the  case  of  Booker  v.  Waller/^  where  one  purchased 
land  and  ga\e  a  mortgage  for  its  price  to  his  grantors,  who 
had  given  a  mortgage  to  their  grantors  to  secure  the  pur- 
chase money,  and  the  land  was  foreclosed  and  sold  under 
the  latter  mortgage,  he  was  held,  upon  the  evidence,  entitled 
to  redeem  the  property  as  against  the  wives  of  his  grantors 
claiming  under  an  executory  contract  of  purchase  made  in 
their  names  through  the  intervention  of  a  trustee,  which  con- 
tract had  been  rescinded  by  its  own  terms  upon  the  redemption 
of  the  lands  by  a  judgment  creditor  of  the  husbands,  but  re- 
newed through  the  intervention  of  the  trustee  with  the  credit- 
or so  redeeming,  after  he  had  taken  title. 

§  1114,  Same — Pending  foreclosure. — In  some  states 
ci  person  acquiring  an  interest  in  the  mortgaged  property  pend- 
ing a  foreclosure  suit  will  not  generally  be  permitted  to  re- 
deem,^" for  the  reason  that  all  parties  acquiring  an  interest 
in  the  subject  matter  of  the  suit  pendent  lite  are  bound  and 
concluded  by  the  judgment  or  decree  ;^^  and  the  grantee  of 
the  land  by  a  deed  which  is  not  delivered  until  after  the  fore- 
closure of  a  mortgage  on  the  same  land,  cannot  redeem  from 
the  mortgage,  even  though  he  was  not  served  with  the  sum- 
mons in  the  action,^^  because  the  court  is  not  bound  to  take 
notice  of  any  interest  acquired  by  purchase  in  the  subject 
matter  of  the  suit  pending  the  action. ^^     It  is  held  by  some  of 

"C/n/rfj  V.   Childs.   10   Ohio   St.  Co.    10    Paige   Ch.    (N.    Y.)     481; 

339,  75  Am.  Dec.  512.  Sedgwick  v.  Cleveland,  7  Paige  Ch. 

19  81   Ala.  549.  (N.   Y.)    287;  Darling  v.   Osborne, 

^^Cook  V.  Mancius,  5  John.   Ch.  51  Vt.  150;  Heller  v.  King,  54  Neb. 

(N.  Y.)  89.  22,  74  N.  W.  423. 

^^Cook  V.  Mancius,  5  John.   Ch.  ^^  Russ  v.  Stratton,  11  Misc.  565, 

(N.  Y.)  89.    See  Craig  v.  Ward,  36  32  N.  Y.  Supp.  767. 

Barb.    (N.  Y.)   382;  Harrington  v.  ^^Cooli  v.  Mancius,  5  John.  Ch. 

Slade,    22    Barb.     (N.    Y.)      161;  (N.  Y.)   89.     See  Hall  v.  Jack,  32 

People's    Bank    v.    Hamilton  Mfg.  Md.  253;  Inloes  v.  Harvey,  11  Md. 


§  1115] 


REDEMPTION. 


1511 


the  cases,  however,  that  the  equity  of  redemption  is  not  ex- 
tinguished until  after  a  sale  made  under  the  judgment  and 
decree  of  the  court,  and  that  consequently  one  purchasing 
after  the  decree,  but  before  the  sale,  is  entitled  to  redeem.^* 

§  1115.  Same — After  foreclosure. —  The  grantee  of  the 
mortgagor  has  a  right  to  redeem,  though  not  mentioned  in 
the  decree  of  foreclosure,^^  by  j^aying  the  balance  due  upon 
the  mortgage  after  sale  under  foreclosure,  as  well  as  the 
purchase  money. ^®  He  may  redeem  notwithstanding  a  fore- 
closure and  sale,  when  he  was  not  made  a  party  to  the  fore- 
closure proceedings ;  ^'^  and  it  matters  nothing  to  the  mort- 
gagee, or  those  claiming  under  the  mortgagee,  whether  the 
conveyance  of  the  equity  of  redemption  was  voluntary  or 
even  fraudulent  as  to  creditors. ^^  It  is  held  in  New  York, 
however,  that  a  grantee  of  land  by  a  deed  which  is  not  de- 
livered until  after  the  foreclosure  of  a  mortgage  on  the  land 


524;  Haveu  v.  Ada)ii.  90  Mass.  (8 
Allen)  366;  McPherson  v.  Hansel, 
13  N.  J.  Eq.  (2  Beas.)  301;  Allen 
V.  Morris.  34  X.  J.  L.  (5  Vr.)  159; 
Harrington  v.  Slade.  22  Barb.  (N. 
Y.)  161;  Mtirray  v.  Ballon,  1  John. 
Ch.  (X.  Y.)  566;  Porter  v.  Barclay, 
18  Ohio  St.  546;  Price  v.  White.  1 
Bailey  (S.  C.)  Eq.  244;  Lezvis  v. 
Mew,  1  Strobh.  (S.  C. )  Eq.  180: 
August  v.  Seeskind,  6  Cold.  (Tenn.) 
166;  Allen  v.  Atchison.  26  Tex.  616; 
Davis  V.  Christian,  15  Gratt.  (Va.) 
1;  Tilton  v.  Co  field.  93  U.  S.  163. 
23  L.  ed.  858;  IVorsley  v.  Scar- 
borough, 3  Atk.  392;  Mead  v. 
Orrery.  3  -Atk.  242;  Garth  v.  Ward. 
2  Atk.  175 ;  Moore  v.  McNamara,  2 
Ball  &  B.  186.  12  Rev.  Rep.  73; 
Gaskeld  v.  Durdin.  2  Ball  &  B.  169; 
Re  Barnard's  Banking  Company.  L. 


R.  2  Ch.  171  ;  Sorrell  v.  Carpenter. 
2  Pr.  Wins.  482;  JVinchester  v. 
Paine.  11  Ves.  194.  8  Rev.  Rep. 
131.  Com.  Dig.  Ch.  4  C.  3  &  4,  2 
h'onbl.  Eq.   B.  2  C.  6.  S.  3.  note  n. 

2*  Willis  V.  Smith.  66  Tex.  31,  17 
S.  W.  247.  See  also  Davis  v.  Green- 
wood, 2  Xeb.  (Inof.)  317.  96  X. 
W.  526. 

25    Farrell  v.  Parlier.  50  111.  274. 

^^  Bradley  v.  Snyder.  14  III.  263, 
58  Am.  Dec.  564. 

27  See  Phillips  v.  Hagart.  113  Cal. 
552,  54  Am.  St.  Rep.  369.  45  Pac. 
843. 

^^  Bradley  v.  Snyder.  14  111.  263. 
58  Am.  Dec.  564.  See  Houston  v. 
Xaiional  Mutual  Building  &  Loan 
Ass'c.  80  Miss.  31.  92  Am.  St.  Rep. 
565,  31  So.  540. 


1512  MORTGAGE    FORECLOSURES.  [§    1116 

cannot  redeem  from  the  mortgage,  although  not  served  with 
the  summons  in  the  action. ^^ 

The  equity  of  redemption  not  being  extinguished  until 
after  a  sale  under  the  decree  of  foreclosure,  one  purchasing 
after  the  decree,  but  before  the  sale,  may  redeem.'"  Thus,  it 
is  said  by  the  supreme  court  of  Connecticut,  in  the  case  of 
Loomis  V.  Knox,'^  that  a  conveyance  by  a  mortgagor  whose 
right  to  redeem  has  been  foreclosed,  and  who  is  not  in  pos- 
session, of  all  interest  in  the  premises  to  a  third  person,  is 
valid,  and  passes  a  right  of  redemption  acquired  by  payment 
of  the  debt  of  a  junior  lienor  who  was  not  made  a  party  to 
the  foreclosure  proceeding.  But  an  assignee  of  the  equity  of 
redemption  under  a  mortgage  executed  at  a  time  when  the 
assignee  of  the  equity  has  no  right  to  redeem  cannot  be  given 
such  right  by  subsequent  legislation.'^ 

The  Texas  court  of  civil  appeals,  in  the  case  of  Maulding 
V.  Coffin,''  say  that  a  purchaser  from  the  mortgagor  in  a 
mortgage  containing  a  power  of  sale,  of  which  the  purchaser 
had  notice,  has  no  right  to  redeem  from  such  sale  after  the 
exercises  of  such  power  and  a  sale  of  the  premises  by  the 
mortgagee.  The  rule  as  to  the  right  of  redemption  in  case 
of  a  judicial  foreclosure  sale,  to  which  the  owner  is  not 
made  a  party,  is  inapplicable  in  such  case. 

§  1116.  Same — At  execution  sale. — Where  the  equity 
of  redemption  is  sold  under  a  levy  of  execution,  the  mort- 
gagor's right  to  redeem  is  thereby  lost  to  him,'*  and  passes 

^^Russv.  Stratton,  11  Misc.  565.  gagor.      McMillan    v.    Richards,    9 

32  N.  Y.  Supp.  767.  Cal.  365,  70  Am.  Dec.  655. 

30  Loomis  V.  Knox,  60  Conn.  343,  3i  60  Conn.  343,  22  Atl.  771. 

22  Atl.   771 ;    Willis    v.    Smith,    60  32  Lehman  v.  Moors,  93  Ala.  186, 

Tex.  31.     See    McMillan    v.    Rich-  9  So.  590. 

ards,  9  Cal.  365,  70  Am.  Dec.  655.  33  6  Tex.   Civ.   App.  416,    25    S. 

Mortgagor's     estate     after    fore-  W.  480. 

closure  sale,  and  before  conveyance  ^*  Punderson   v.   Brown,    1     Day 

to  purchaser  is  subject  to  the  lien  (Conn.)  93,  2  Am.  Dec.  53. 
of    a   judgment   against   the   mort- 


§   1116] 


REDEMPTION. 


1513 


to  the  purchaser,  who  may  redeem  if  he  so  elects,^^  but  cannot 
be  compelled  to  do  so,^^  and  where  he  elects  to  exercise  this 
right,  he  will  be  subrogated  to  the  rights  of  the  mortgagee.'''^ 
It  is  thought  the  holder  of  a  sheriff's  certificate,  given  on  an 
execution  sale,  has  a  right  to  redeem  from  a  foreclosure  sale 
as  a  lienholder,  but  not  as  an  owner,  although  no  express  pro- 
vision  is  made  therefor  by  statute.^^     His  right  under  his 


^^Cohn  V.  Hoffman,  56  Ark.  119, 
19  S.  W.  233;  Robertson  v.  Van 
Cleave,  129  Ind.  217,  231,  26  N.  E. 
899,  15  L.R.A.  68;  Nesbitt  v.  Han- 
way,  87  Ind.  400;  Julian  v.  Bell,  26 
Ind.  220,  89  Am.  Dec.  460;  Ham- 
mond V.  Leavitt,  59  Iowa,  407 ; 
Phillips  V.  Winslow,  18  B.  Mon. 
(Ky.)  431,  68  Am.  Dec.  729.  See 
Boarman  v.  Cailctt,  21  Miss.  149; 
Insley  v.  United  States,  105  U.  S. 
512,  37  L.  ed.  1163,  14  Sup.  Ct.  Rep. 
158;  Pollard  v.  Harlow,  138  Cal. 
390,  71  Pac.  454,  648.  See  Hawk- 
eye  Ins.  Co.  V.  Maxwell,  119  Iowa, 
672,  94  N.  W.  207.  See  also  Law 
V.  Citizen's  Bank  of  Northfield,  85 
Minn.  411,  89  Am.  St.  Rep.  566,  89 
N.  W.  320.  But  see  Shumate  as 
adm'r  etc.  v.  McLendon,  120  Ga. 
396,  48  S.  E.  10. 

Purchaser  of  equity  of  redemp- 
tion at  sheriff's  sale  succeeds  to  the 
rights  of  the  judgment  plaintiff, 
and  may  redeem  as  against  a  prior 
incumbrancer  before  foreclosure 
and  sale,  although  he  or  the  judg- 
ment plaintiff  may  have  been  a 
party  to  the  foreclosure  suit. 
Julian  V.  Bell,  26  Ind.  220,  89  Am. 
Dec.  460. 

^^  Rogers  v.  Meyers,  68  III.  92. 

^"^  Hammond  v.  Leavitt,  59  Iowa, 
407,  13  N.  W.  397. 

38  Robertson  v.  Van  Cleave,  129 
Ind.  217,  26  N.  E.  899,  15  L.R.A.  68. 


In  Alabama  the  purchaser  at  an 
execution  sale  of  the  equity  of  re- 
demption in  mortgaged  lands  has 
no  equity,  upon  seeking  redemption 
from  the  mortgagee,  to  compel  the 
application  of  personal  property 
embraced  in  the  same  mortgage,  to 
the  payment  of  the  mortgage  debt 
to  the  exoneration  of  the  land;  and 
the  appointment  of  a  receiver  to 
take  charge  of  such  personality, 
upon  bill  filed  by  the  purchaser  to 
redeem  the  mortgaged  lands,  and 
an  order  for  its  sale  and  the  ap- 
plication of  the  proceeds  to  the 
mortgage  debt,  in  case  of  the  land, 
are  erroneous.  Lovelace  v.  Webb, 
62  Ala.  271. 

In  Arkansas  a  judgment  creditor 
who  purchased  his  debtor's  equity 
of  redemption  in  lands  at  execution 
sale  on  his  judgment,  subject  to 
prior  mortgage  liens,  is  entitled  to 
redeem  from  the  mortgagee,  who, 
after  the  rendition  of  the  judgment, 
but  before  the  execution  sale, 
bought  up  several  claims  against  the 
debtor,  and  took  a  deed  from  him 
in  satisfaction  of  all  his  demands, 
and  went  into  possession,  by  pay- 
ment of  the  prior  mortgage  liens 
only,  without  paying  the  debts  cre- 
ated after  his  judgment  lien  at- 
tached to  the  land.  Cohn  v.  Hoff- 
man, 56  Ark.  119,  19  S.  W.  233. 
In  Indiana  a  purchaser  at  a  sher- 


1514 


MOR'JGAGE    FORECLOSURES. 


[§   1116 


purchase  is  essentially  that  of  a  judgment  creditor,^"  and  to  be 
valid  the  judgment  and  execution  must  be  regular,  where  the 
judgment  upon  which  the  execution  was  issued  is  irregular, 
the  sale  will  l)e  invalid,  the  purchaser  acquires  no  right  to 
redeem  from  a  mortgage  foreclosure  sale  of  the  land,  and  the 
'title  acquired  under  such  foreclosure  will  not  be  divested  by 
such  redemption.*" 

In   those   cases    where    the   purchaser   of   the   mortgagor's 


iff's  sale  of  mortgaged  property, 
not  made  a  party  to  a  suit  to  fore- 
closure brought  before  his  right  to 
a  deed  matures,  may  redeem  after 
his  title  matures,  and  need  not  aver 
a  tender  or  offer  to  pay  the  money 
necessary  to  redeem.  Nesbit  v. 
Hanway,  87  Ind.  400. 

A  statement  by  the  holder  of  a 
sheriff's  certificate,  in  order  to  give 
him  the  right  to  redeem  from  a 
mortgage  sale,  must,  under  Ind. 
Rev.  Stat.  §  772,  state  the  amount 
and  date  of  the  judgment,  as  well 
as  the  amount  due  and  unpaid ;  and 
a  mere  reference  to  the  sheriff's 
certificate  is  not  sufficient.  Id. 
Roberts  v.  Van  Cleave.  129  Ind. 
217,  26  N.  E.  899,  15  L.R.A.  68: 
Nesbitt  v.  Hanway,  87  Ind.  400. 

In  Kentucky  a  purchaser  under 
sale  of  equity  of  redemption  only 
acquires  lien  upon  it  for  the  pay- 
ment of  the  purchase  money  and 
interest,  since  the  adoption  of  the 
revised  statutes  of  Kentucky;  and 
if,  at  the  sale,  the  previous  in- 
cumbrancer is  in  possession,  under 
the  terms  of  the  deed  creating  the 
incumbrance,  a  court  of  equity  will 
secure  him  in  the  possession,  leav- 
ing to  the  purchaser  the  benefit  of 
the  lien  acquired  under  the  sale. 
Phillips  V.  Winslow,  18  B.  Mon. 
(Ky.)  431,  68  Am.  Dec.  729. 


In  Mississippi,  there  is  an  excep- 
tion to  the  general  rule,  it  being 
held  in  that  state  that  a  purchaser 
of  mortgaged  property  under  exe- 
cution against  the  mortgagor,  be- 
fore forfeiture  of  the  mortgage,  or 
payment  of  the  mortgaged  debt, 
having  by  his  purchase  acquired  no 
interest  in  or  lien  of  the  mortgaged 
property,  has  no  right  to  redeem  it. 
But  it  would  be  otherwise  if  by  the 
purchase  he  acquired  any  right. 
Boarman  v.  Catlett,  21  Miss.  149. 

The  United  States  Supreme 
Court  say  that  where  real  estate  i.s 
sold  on  execution,  and  is  after- 
wards sold  on  foreclosure  of  a 
prior  mortgage,  the  purchaser  at 
the  execution  sale,  if  not  made  a 
party  to  the  foreclosure  proceed- 
ings, may  redeem  and  treat  the 
deed  made  on  foreclosure  as  a 
mortgage  and  the  purchaser  on 
foreclosure  sale  as  a  mortgagee  in 
possession.  Insley  v.  United  States. 
150  U.  S.  512,  37  L.  ed.  1163,  14 
Sup.  Ct.  Rep.  158. 

39  Robertson  v.  P'an  Cleave.  129 
Ind.  217,  26  N.  E.  899,  15  L.R.A. 
68. 

40  IVooters  v.  Pink  el  (111.)  25  N. 
E.  791 ;  aff'd  Hoovers  v.  Joseph. 
137  111.  113,  31  Am.  St.  Rep.  355,  27 
N.  E.  80. 


§     1117]  REDEMPTION.  1515 

equity  of  redemption  at  an  execution  sale  exercises  the  right 
and  redeems  the  mortgage,  the  mortgagor  may  redeem  from 
the  execution  sale  within  the  time  allowed  by  law,  and  there- 
after redeem  from  the  mortgage  sale  within  the  time  allowed 
for  that  purpose.*^ 

§  1117.  Same — At  foreclosure  sale. — A  purchaser  at  a 
foreclosure  sale  of  a  first  mortgage,  with  knowledge  that  per- 
sons interested  in  the  mortgaged  premises  were  not  made 
parties  to  the  foreclosure  suit,  takes  the  title  thereto  subject 
to  the  right  of  redemption  in  such  interested  parties;*^  and 
on  assignment,  with  like  notice,  his  assignee  will  hold  subject 
to  the  same  right  of  redemption.*' 

The  purchaser  at  a  foreclosure  sale  of  a  junior  mortgage 
may,  within  the  time  allowed  b}-  statute,  redeem  from  the 
foreclosure  of  a  prior  mortgage.**  But  it  is  said  that  a  pur- 
chaser at  a  mortgage  foreclosure  sale,  who  has  neglected  to 
pay  the  balance  of  the  purchase  price  until  the  mortgagee 
has  elected  to  treat  the  contract  of  purchase  as  abandoned  and 

*^  Atkins  V.  Sawyer,  18  Mass.   (1  decree,  has  a  right  to  redeem  the 

Pick.)  351,  354,  11  Am.  Dec.  188.  mortgaged  premises  from  the  senior 

*2  Murphy  V.  Farwell,  9  Wis.  102.  mortgage,  though  the  senior  mort- 

*3  Hoppin  V.  Doty,  22  Wis.  621 ;  gagee    may    have    previously    fore- 

Hodson  V.  Treat,  7  Wis.  263.  closed   his  mortgage  without  mak- 

^  Hasselman    v.    McKernan,    50  ing  the  holder  of  the  junior  mort- 

Ind.    441 ;    Buchanati    v.    Reid,    43  gage    a    party    to    the    action,    and 

Minn.  172,  45  N.  W.  11;  M inter  v.  though  the  premises  may  have  been 

Carr,   (1894)   2  Ch.  321.     See  also  sold   by  the   sheriff  on   the   decree 

Geishaker  v.  Pancoast,  57  N.  J.  Eq.  and  bought  in  by  the  senior  mort- 

60,  40  Atl.  200.  gagee.      Hasselman    v.    McKernan, 

As  a  "creditor  having  a  lien,"  in  50  Ind.  441. 

Minnesota,    Buchanan    v.    Reid,   43  In    England,    it    is   held   that   the 

Minn.  172,  45  N.  W.  11.  right  of  redemption  by  a  purchaser 

In  Indiana,  the  holder  of  a  junior  under  a  second  mortgage  to  re- 
mortgage  who  has  foreclosed  his  deem  the  property  covered  by  that 
mortgage  in  a  suit  without  making  mortgage  alone,  as  against  one 
a  senior  mortgagee  a  party,  and  holding  first  mortgages  upon  that 
who  has  bought  in  the  mortgaged  and  other  properties  from  the  same 
premises  at  a  sheriff's  sale  on  the  mortgagor,    is   not   affected  by  the 


1516  MORTGAGE    FORECLOSURES.  [§    1118 

has  transferred  all  his  interest  to  another,  cannot,  as  against 
the  latter,  redeem  the  premises  from  the  mortgage  and  enforce 
his  purchase.*^ 

§  1118.  Same — From  sole  heir. — The  supreme  court  of 
Michigan,  in  the  case  of  Squire  v.  Wright,'*^  say  that  one  to 
whom  the  sole  heir  of  a  mortgagor  executed  a  deed  to 
enable  him  to  redeem  from  a  sale  on  foreclosure,  made  after 
the  departure  and  reputed  death  of  the  mortgagor,  has  a 
right  to  redeem  for  the  mortgagor,  if  living,  and  if  not,  then 
for  himself  as  grantee  of  the  heir. 

§  1119.  Same — From  grantee  of  owner  of  equity  of  re- 
demption.— In  the  recent  case  of  Case  v.  Fry,*'  the  su- 
preme court  of  Iowa  say  that  a  purchaser  of  land  by  quit  claim 
deed  from  one  whose  right  to  redeem  from  a  foreclosure  sale 
has  not  expired,  has  the  right  to  redeem,  notwithstanding  an 
agreement  made  before  the  commencement  of  foreclosure  pro- 
ceedings, by  which  the  grantor  and  his  wife  conveyed  the  land 
to  trustees,  with  a  provision  that  the  trustees  should  sell  the 
land  and  pay  all  commissions,  costs,  and  expenses,  and  turn 
over  the  remaining  proceeds  or  deed  the  residue  of  the  land 
upon  the  order  of  the  grantor's  wife,  where  it  is  provided  that 
the  stipulation  shall  be  in  force  and  effect  for  one  year  only, 
and  that  time  is  the  essence  of  the  stipulation,  and  no  sale  of 
the  property,  or  any  part  of  it,  is  made  by  the  trustees,  al- 
though the  decree  of  foreclosure  recognizes  the  trust  agree- 
ment and  the  money  is  paid  to  the  trustees  in  consequence, 
but  the  scope  and  effect  of  such  agreement  are  not  involved  in 
the  foreclosure  proceedings,  and  no  attempt  is  made  to  extend 

fact    that   a   prior   holder    of    such  ^5  Atkins  v.  Tutwiler,  98  Ala.  129^ 

second  mortgage  and  of  the  equity  11  So.  640. 

of    redemption    held    a    subsequent  ^^85  Mich.  76,  48  N.  W.  286. 

mortgage     upon     both     properties.  *'91  Iowa,  132,  59  N.  W.  Z2Z. 
Minter  v.  Carr,   (1894)   2  Ch.  321. 


§     1121]  REDEMPTION.  1517 

it  beyond  the  year  provided  for,  and  such  year  has  not  expired 
when  the  decree  was  made. 

§  1120.  Remainderman  and  revisioner. — A  right  of  re- 
demption is  vested  in  a  remainderman  or  a  revisioner  of  real 
property.*^  It  has  been  said,  by  the  supreme  court  of  Mis- 
souri, in  the  case  of  Stevenson  v.  Edwards, ^^  that  a  re- 
mainderman, under  a  deed,  has  a  right  to  redeem  lands  con- 
veyed thereby  and  mortgaged  by  the  life  tenant,  although  such 
deed  has  been  declared  fraudulent  as  against  creditors,  as 
such  fraud  does  not  affect  the  rights  of  the  parties  as  between 
themselves. 

§  1121.  Stranger  to  transaction. — We  have  already  seen 
that,  to  entitle  a  person  to  redeem  from  a  mortgage,  he  must 
show  good  title  in  himself,  and  a  legal  right  to  redeem,  be- 
fore he,  though  holding  the  title  of  a  mortgagor,  can  effect 
the  discharge  of  the  mortgage,  or  remove  a  prior  incum- 
brance ;  ^°  hence,  an  action  cannot  be  maintained  by  a  mere 
volunteer  or  stranger  to  the  transaction,*^  unless  the  right  to 
redeem  has  been  reserved  to  such  stranger,  and  then  it  must 
be  an  express  reservation.®^  But  should  the  purchaser  at  an 
execution  sale  permit  redemption  to  be  made  by  a  stranger, 

*^  Stevenson  v.  Edwards,  98  Mo.  ance  Co.  v.  White,  106  III.  67;  Rog- 

622;  Raffey  v.  King,  1  Keen,  601;  ers  v.  Meyer,  68  111.  92;  Beach  v. 

Rawald  v.  Russel,  Younge  9.     See  Shaw,  57  111.  17;  Skinner  v.  Young, 

Engel  v.  Ladewig,  153  Mich.  8,  116  80  Iowa,  234,  45  N.  W.  889;  Penn 

N.    W.    550.      See    also    Snook    v.  v.  Clemans,  19  Iowa,  372;  Baying- 

Zentmyer,  91  Md.  485,  46  Atl.  1008.  ton  v.  Buckwaltcr,  7  Iowa,  512,  74 

49  98  Mo.  622,  12  S.  W.  255.  Am.  Dec.  279 ;  Powers  v.  Gold  Lum- 

^^  Eastman  v.    Batchelder,  26   N.  ber  Co.  43  Mich.  468,  5  X.  W.  656 

H.  141,  72  Am.  Dec.  295.    See  ante  Haywood  v.    Underwood,  28  Mich 

§  1077.  427;  Cousin  v.  Allen,  28  Mich.  232 

^^Phyfe  V.  Riley,  15  Wend.   (N.  Moore   v.   Beason,  44   N.    H.   215 

Y.)    248,    30    Am.    Dec.    50.      See  Meehan  v.  Forrester,  52  N.  Y.  277 

Butts   V.   Broughton,   72   Ala.   294;  Eaton  v.  North,  25  Wis.  514. 
Rapier  v.   Gulf  City  Paper  Co.  64  ^^  Pun-is  v.  Brown,  4  Ired.    (N. 

Ala.  330;  Union  Mutual  Life  Insur-  C.)   Eq.  415. 


1518  MORTGAGE    FORECLOSURES.  [§    1122 

the  latter  will  be  considered  as  acting  on  behalf  of  the  execu- 
tion defendant.*^ 

§  1122.  Sub-agent — May  redeem,  when. — In  those 
cases  where  redemption  to  mortgaged  premises  is  effected 
through  a  sub-agent,  under  color  of  authority,  and  the  acts 
of  such  sub-agent  are  subsequently  ratified  by  the  principals, 
it  will  be  binding  upon  the  person  who  purchased  the  land 
at  foreclosure  sale.^*  In  the  course  of  the  opinion,  in  the  case 
of  Teucher  v.  Hiatt,^^  the  supreme  court  of  Iowa  say :  "While 
it  is  true,  as  stated  by  counsel  for  appellant,  that  'agency  is 
generally  a  personal  trust  and  confidence  which  cannot  be 
delegated,'  yet  there  is  nothing  in  this  case  to  show  but  that 
the  agent  Ratcliff  was  authorized  to  effect  the  redemption 
through  a  sub-agent.  The  ratification  of  the  act  of  the  sub- 
agent  would  tend  to  show  that  this  was  so.  However  this  may 
be.  the  redemption  effected  by  such  sub-agent,  under  color 
of  authority,  and  whose  act  was  ratified  by  the  principal,  is 
good  and  sufficient  as  against  the  defendant  Stewart."  ^^ 

§  1123.  Subsequent  lienor. — It  is  a  well  established  prin- 
ciple that  parties  acquiring  an  interest  subsequent  to  the  plain- 
tiff in  an  action  for  the  foreclosure  of  a  mortgage  and  before 
the  commencement  of  such  action,  who  are  not  parties,  possess 
both  a  statutory  and  an  equitable  right  to  redeem  from  the 
sale  made  under  the  judgment  and  decree  in  such  action." 

^^Phyfe  V.  Riley,  15  Wend.   (N.  gins,  10  Cal.  547,  70  Am.  Dec.  748; 

Y.)  248,  30  Am.  Dec.  55.  Bradley  v.   Snyder,   14  111.  263,   58 

^^  Teucher  v.  Hiatt,  23  Iowa,  527,  Am.  Dec.  564;  Stewart  v.  Johnson, 

92  Am.  Dec.  440.  30  Ohio  St.  30;  Frische  v.  Kramer's 

55  23  Iowa,  527.  Lessee,  16  Ohio,   125,  47  Am.  Dec. 

56  See    Masterson    v.     Beasley,  3  3^3.  ^^^^^  ^,   Reyburn,  75  U.  S.  (8 
Ohio,  301 ;  McCord  v    Bergaut.,  7  ^                  ^^  ^  ^^            ^           ^^ 
Watts.     (Pa.)     487;     Patterson    v.  /                                        l 
Brindle,  9   Watts.    (Pa.)    98.     See  ^«"^  <^^-  ^-  ^"'"'  ^^  ^^^-  ^^^'  ^'^ 
Blackwell  Tax  Titles,  501,  504.  N.  W.  600.    See  Diekmson  v.  Duck- 

^T  Moore  v.  Andres,  14  Ark.  678,  worth,  74  Ark.  138,  85  S.  W.  82. 
60  Am.  Dec.  551;  Whitney  v.  Hig-       See    also    Horr   v.    Herrington,    22 


1123] 


REDEMPTION. 


1519 


Such  subsequent  lienhokler  cannot  be  deprived  of  his  right 
to  collect  his  debt  by  redemption,  to  the  extent  of  the  value  of 
the  property  sold  over  the  amount  paid  to  redeem,  by  the 
interposition  of  the  liens  of  fraudulent  and  simulated  securi- 
ties.^® It  is  thought  that  the  right  of  a  junior  mortgagee  to 
redeem  from  the  senior  mortgagee,  by  paying  his  debt,  with 
interest  and  costs,  is  an  equitable  right,  founded  on  common 
law  principles,  and  is  entirely  independent  of  the  statutory 
right  of  redemption  given  to  judgment  creditors. ^^  It  has 
been  properly  said  that  a  subsequent  party  in  interest,  whether 
by  way  of  mortgage  liens  or  judgment,  cannot,  on  motion, 
obtain  a  right  to  redeem  and  have  the  property  conveyed  to 
him  by  a  purchaser.^"  The  only  remedy  in  such  a  case  is 
by  action  seeking  to  enforce  the  right  of  redemption.®^  Where 
.there  is  more  than  one  lien  creditor  to  redeem  the  date  of 
record  governs  the  order  of  redemption.®^ 


Okla.  590,  20  L.R.A.(N.S.)   47,  98 
Pac.  443. 

58  Parker  v.  St.  Mart  tit,  S3  Minn. 
1,  55  N.  W.  113. 

59  This  right  applies  equally  to 
deeds  of  trust  to  secure  the  pay- 
ment of  debts  and  to  mortgages 
proper.  Wiley  v.  Ewing,  47  Ala. 
418.  See  Beach  v.  Shaw,  57  111.  17; 
Hodgen  v.  Guttery,  58  111.  431. 

60  See  ante,  §  1035. 

^^  Douglass  v.  IVoodworth,  51 
Barb.    (N.    Y.)    79. 

In  this  case  it  is  said  that  in  a 
foreclosure  suit,  after  the  property 
has  been  sold  and  the  deed  de- 
livered on  such  a  motion  made  al- 
leging that  the  parties  have  been 
misled  by  erroneous  information, 
the  only  thing  that  can  be  done 
is  to  put  the  judgment  suit  aside 
on  sale  and  conveyance,  and  order 
a  resale  of  the  property.  Such  sale 
can  be  made  only  on  terms  indemni- 
fying   the    purchaser,    repaying    to 


him  the  money  paid  to  him  on  the 
purchase  and  all  expenses  incident 
thereto.  Douglass  v.  IVoodwortJi, 
51  Barb.  (N.  Y.)  79. 

Under  Iowa  Rev.  Stat.  §  3664. 
upon  action  at  law  upon  notes  se- 
cured by  mortgage,  a  junior  mort- 
gagee has  a  right  to  redeem  only 
as  provided  by  that  section  of  the 
statute.  He  has  a  right  of  redemp- 
tion distinguished  from  an  equity 
of  redemption.  Mayer  v.  Fariitcr's 
Bank,  44  Iowa.  212. 

In  this  case  the  judgment  ob- 
tained was  properly  made  a  lien 
upon  the  lands  covered  by  the 
mortgage.  And  if  it  was  by  its 
terms  made  a  lien  upon  all  the  real 
estate  of  defendant,  including  other 
than  that  covered  by  the  mortgage, 
this  would  not  render  it  void,  but 
only  voidable,  as  property  not  em- 
braced  in  the  mortgage. 

62  Bartlesoit  v.  Munson,  105  Minn. 
348,  117  X.  W.  512. 


1520  MORTGAGE    FORECLOSURES.  [§     1124 

§  1124.  Sureties  may  redeem. — On  the  well  recognized 
principle  that  a  surety  has  the  right  to  avail  himself  of  the 
securities  held  by  the  creditor,  after  he  has  satisfied  the  debt, 
a  surety  for  the  mortgage  debt,  even  though  he  has  no  inter- 
est in  or  lien  upon  the  mortgaged  estate,  has  a  right  to  redeem 
from  the  mortgage  lien  and  be  subrogated  to  the  rights  of  the 
mortgagee.^^  But  it  has  been  held  by  the  supreme  court  of 
Iowa,  in  the  case  of  Miller  v.  Ayres,^*  that  a  surety  on  a  mort- 
gage note,  against  whom  judgment  has  been  rendered  in  pro- 
ceedings to  foreclose,  has  no  right  to  redeem  from  the  pur- 
chaser at  the  foreclosure  sale.  The  court  say :  "Counsel  for 
the  plaintiff  insist  that  a  surety  has  the  right  to  redeem  to  the 
same  extent  as  the  principal  debtor,  and  when  he  does  so  is 
entitled  to  be  subrogated  to  the  rights  of  the  creditor.  Au- 
thorities are  cited  in  support  of  this  proposition.  That  a 
surety  before  a  sale  may  pay  off  a  debt,  and  be  subrogated  to 
the  rights  of  the  creditor,  is  probably  true.  The  authorities 
cited  do  not,  we  think,  go  further  than  this.  But  the  right 
of  any  person  to  redeem,  after  a  sale  under  a  mortgage  fore- 
closure, depends  upon  the  statute.  If  there  is  no  statute  so 
providing  there  is  no  such  right." 

§  1125.  Tenant  by  the  curtesy. — That  a  tenant  by  the 
curtesy  has  such  an  interest  in  the  mortgaged  lands  as  will 
entitle  him  to  redeem,  is  settled  by  two  old  cases.^^    I  am  not 

^3  Averill  v.  Taylor,  8  N.  Y.  44,  Mawer  v.  Harrison,  1  Eq.  Cas.  Abr. 
51;  Ex  parte  Crisp,  1  Atk.  133;  93,- but  an  investigation  of  that  case 
Green  v.  Wynn,  L.  R.  21  Ch.  204;  revealed  that  it  is  no  real  authority 
Wade  V.  Coope,  2  Sim.  155 ;  May-  for  any  such  proposition,  and  in  the 
hew  V.  Cricket,  2  Swanst.  185 ;  absence  of  any  other  authority  in 
Wright  v.  Morley,  11  Ves.  21,  S  support  of  the  dictum,  the  court  de- 
Rev.  69.  clined  to  follow  it  in  In  re  Walker, 

The  dictum  of  Sir  WilHam  Grant,  (1892)    1  Ch.  621. 

Master  of  the  Rolls,  in  Wright  v.  64  59  lowa,  424,  13  N.  W.  436. 

Morley,  supra,  to  the  effect  that  a  ^^  See     Swannock     v.     Penelope, 

creditor  is  entitled  to  the  benefit  of  Ambl.  6;  Casburne  v.  Inglis,  2  Jac. 

the  securities  given  by  the  principal  &  W.  1.94. 
debtor  was  supposed  to  rest  upon 


§  1126] 


REDEMPTION. 


1521 


aware  that  the  question  has  been  adjudicated  in  this  country, 
hut  on  principle  I  regard  the  decisions  in  the  Enghsh  cases 
cited  above,  as  correct. 

§  1126.  Tenant  in  dower. — It  is  well  settled  that  an  in- 
choate right  of  dower  in  a  wife  is  a  sufficient  estate  in  mort- 
gaged lands  to  entitle  her  to  maintain  a  bill  in  equity  to  re- 
deem such  lands,  and  the  fact  that  she  joined  her  husband 
in  the  execution  of  the  mortgage  will  not  affect  her  rights ;  ^^ 
and  she  may  redeem  although  an  assignment  of  dower  has 
not  yet  been  made  to  her.^'''  The  widow's  right  to  redeem 
exists  equally  whether  the  mortgage  was  executed  before  or 
after  marriage.®^  The  reason  for  this  is  that  the  widow 
is  directly  interested  in  the  payment  of  the  mortgage  debt, 
and  so  long  as  the  title  of  the  mortgagee  has  not  been  made 
absolute  by  foreclosure,  she  is  entitled  to  pay  the  debt  and  take 
dower  in  the  premises.  She  may  avail  herself  of  the  right 
that  she  has,  even  at  law,  as  against  all  others,  in  any  mode 
not  inconsistent  with  the  rights  and  interest  of  the  mort- 
gagee. 

The  supreme  judicial  court  of  Massachusets,  in  the  case 
of  Davis  V.  Wetherell,'"  say  that  no  adjudged  case  has  been 
found  in  which  a  wife  having  an  inchoate  right  of  dower 


^^  Davis  V.  Wetherell,  95  Mass 
(13  Allen)  60,  90  Am.  Dec.  177 
See  Wiley  v.  Ewing,  A7  Ala.  227 
Fletcher  v.  Holmes,  38  Ind.  497 
537;  Wilkins  v.  French,  20  Me.  Ill 
Lamb  v.  Montague,  112  Mass.  352 
Farwell  v.  Cotting,  90  Mass.  (8  Al- 
len) 211;  Burns  v.  Lynde,  88  Mass. 
(6  Allen)  305;  Eaton  v.  Simonds, 
31  Mass.  (14  Pick.)  98;  Greiner  v. 
Klein,  28  Mich.  16;  Bell  v.  Mayor, 
'etc.  of  New  York,  10  Paige  Ch.  (N. 
Y.)  49;  Vanduyne  v.  Thayre,  14 
Wend.  (N.  Y.)  236;  Kling  v.  Bal- 
lentine,  40  Ohio  St.  394;  Gatewood 
V.  Gatewood,  75  Va.  407. 

Mortg.  Vol.  IT.— 96. 


^"^  Heiity's  Case,  58  Mass.  (5 
Cush.)  257;  Gibson  v.  Crehore,  22 
Mass.  (5  Pick.)  151,  153;  Peabody 
V.  Patton,  19  Mass.    (2  Pick.)   519. 

^^Opdyke  v.  Barddes,  11  N.  J. 
Eq.    (3  Stock.)    133. 

^^  Bell  V.  Mayor,  etc.  of  New 
York,  10  Paige  Ch.  (N.  Y.)  49. 
See  Denton  v.  Nanny,  8  Barb.  (N. 
Y.)  618;  Wheeler  v.  Morris,  3 
Bosw.  (N.  Y.)  534;  Titus  v.  Neil- 
son,  5  John.  Ch.  (N.  Y.)  452. 

70  95  Mass.  (13  Allen)  60,  90  Am. 
Dec.  177. 


1522  MORTGAGE    FORECLOSURES.  [§    1126 

has  not  been  allowed  to  redeem  from  a  mortgage  in  which  she 
had  joined  with  her  husband,  and  this  is  thought  to  be  true 
at  common  law,  but  under  the  statutes  in  many  of  the  states 
it  has  been  repeatedly  held  that  a  foreclosure,  in  the  mode 
provided  by  statute,  of  a  mortgage  in  which  the  wife  joined 
with  her  husband  to  release  her  dower,  or  in  case  the  husband 
had  only  been  seized  of  an  equity  of  redemption  during  cover- 
ture, bars  the  right  of  dower,'^^  even  though  the  wife  is  not 
made  a  party  to  the  suit.'^  Upon  general  principles  of  equity 
it  is  difficult  to  find  a  reason  why  an  inchoate  right  of  dower 
should  not  be  protected  against  extinguishment  by  the  fore- 
closure of  a  mortgage;  especially  where  the  husband  had 
l)arted  with  his  whole  estate  in  the  land,  and  can  no  longer  be 
regarded  as  in  any  sense  representing  the  interests  of  the  wife. 
Coverture  is  no  bar  to  the  maintenance  of  a  suit  in  equity; 
and  it  is  the  policy  of  our  legislation  to  permit  married  women 
to  assert,  protect  and  sue  for  their  separate  rights  of  prop- 
erty.'^ 

But  a  tenant  in  dower,  who  seeks  to  maintain  a  bill  in 
equity  to  redeem  land  from  a  mortgage  made  by  her  hus- 
band and  herself,  must  first  ofifer  to  pay  the  whole  amount  du? 
on  the  mortgage.''^*  The  reason  for  this  rule  is  the  fact  that 
the  widow  has  a  right  to  surplus  only  of  proceeds  of  mort- 
gaged premises,  where  she  joined  in  the  mortgage  of  her  hus- 
band's land  for  his  debt  and  the  land  is  sold  on  foreclosure.'^ 

'1  Davis  V.    Wetherell,  95    Mass.  See  Brown  v.  Lapham,  57  Mass.  (3 

(13  Allen)  60,  90  Am.  Dec.  177.  Cush.)    554;  Eaton  v.  Simonds,  31 

"^^  Pitts  V.  Aldrich,  93  Mass.    (11  Mass.  (14  Pick.)  98;  Gibson  v.  Cre- 

Allen)    39;   Farwell  v.   Cotting,  90  hore,  22  Mass.    (5  Pick.)    151,   153 

Mass.    (8    Allen)    211;    Savage    v.  See /'o.y^  §  1134. 

Hall,    78    Mass.     (12    Gray)     363;  "^^  Matthews  v.  Duryee,  4  Keyes 

Wedge  v.  Moore,  60  Mass.  (6  Cush.  (N.  Y.)  535,  3  Abb.  Ap.  Dec.  221; 

8.  House  V.  House,  10  Paige  Ch.  (N. 

"^^  Davis   V.    JV  ether  ell,   95    Mass.  Y.)     165;    Hawley    v.    Bradford,   9 

(13  Allen)  60,  90  Am.  Dec.  177.  Paige  Ch.  (N.  Y.)  200,  Z7  Am.  Dec 

I'^McCabe  v.   Bellows,  93    Mass.  390. 
(7    Gray)    148,    66   Am.    Dec.   467. 


§    1128]  REDEMPTION.  1523 

It  is  said,  however,  that  the  wife's  inchoate  right  of  dower  in 
lands  which  are  sold  under  foreclosure  during  the  lifetime  of 
her  husband  is  extinguished,  and  in  such  a  case  she  will  not  be 
entitled  to  redeem^^ 

§  1127.  Tenant  for  life. — It  is  said  by  the  supreme 
judicial  court  of  Massachusetts,  in  the  case  of  Lanson  v. 
Drake,''^  that  a  tenant  for  life  of  land,  on  which  there  is  a 
mortgage  overdue,  cannot  hold  possession  of  the  land  against 
the  mortgagee  by  paying  interest  as  it  accrues ;  neither  can  he, 
by  paying  the  amount  of  the  mortgage,  compel  the  mortgagee 
to  assign  it  to  him ;  "'^  but  a  bill  brought  for  the  purpose  may 
be  maintained  as  a  bill  to  redeem  in  those  cases  where  the 
plaintiff  alleges  his  willingness  to  pay  the  amount  due  on  the 
mortgage.'^ 

§  1128.  Tenant  for  years. — A  person  in  possession  as 
tenant  for  years  of  lands  mortgaged  by  his  lessor,  has  such 
an  interest  therein  as  will  entitle  him  to  redeem  from  the 
mortgage  lien.^°     The  court  of  chancery  of  New  Jersey,  in 

"^^  Newhall    V.    Lynn    Five    Cent  47  N.  E.  504.     See  also  Downing  v. 

Bank.   101    Mass.  432,  3  Am.   Rep.  Hartshorn,   69   Neb.   364,    111    Am. 

387;  Frost  v.  Peacock,  4  Edw.  Ch.  St.  Rep.  550,  95  N.  \V.  SOI. 

(N.    Y.)    678,    695;    Matthews    v.  ^^ McDcrmott   v.    Burke,    16   Cal. 

Duryee,   4   Keyes    (N.    Y.)    540,   3  580;  Davis  v.   Wether  ell,  95  Mass. 

Ahh.  Ait.'Dtc.lZl;  Titus  V.N  eilson,  (13   Allen)    60,  90  Am.   Dec.    177; 

5  John.   Ch.    (N.  Y.)    452;  Bell  v.  Clary  v.  Owen,  81  Mass.  (15  Gray) 

Mayor,  etc.  of  New  York,  10  Paige  521;    Loud   v.    Lane,   49    Mass.    (8 

Ch.    49;    Hawley    v.    Bradford,    9  Met.)  517,  519;  Bacon  v.  Bowdoin, 

Paige  Ch.  200,  2,7  Am.  Dec.  390.  39    Mass.    (22    Pick.)    401,   404,   43 

77  105  Mass.  564.     See  Rafferty  v.  Mass.     (2     Met.)     591 ;     Mayo     v. 

King,  1  Keen,  618;  Ravald  v.  Rus-  Fletcher,  31  Mass.   (15  Pick.)  525; 

sell,  1  Younge,  19.  Hamilton  v.   Dobbs,    19   N.   J.   Eq. 

'8  But    see   Atwood   v.    Charlton,  (4  C.  E.  Gr.)  227 ;  Arnold  v.  Green, 

21  R.  I.  568,  45  Atl.  580.  116  N.  Y.  572,  23  N.  E.  1;  IVilling 

TO  See    Lamb    v.    Montague,    112  v.  Reyerson,  94  N.  Y.  103;  Avcrill 

Mass.  352;  Aynsly  v.  Reed,  1  Dick.  v.  Taylor,  8  N.  Y.  44;  Lane  v.  King, 

249;    Evans   v.    Jones,    1    Kay.    29;  8  Wend.  (N.  Y.)  SS-,,  24  Am.  Dec. 

Wickes   V.   Scrivne,   1    John.   &   H.  105;  Keech  v.  Hall,   1   Doug.  21,  2 

215;  Kerse  v.  Miller,  169  Mass.  44,  Smith    Lead.    Cas.    (9th    Am.    ed.) 


1524  MORTGAGE    FORECLOSURES.  [§    1129 

the  case  of  Hamilton  v.  Dobbs,'^  say  that  a  tenant  for  years 
who  pays  off  a  mortgage  debt  is  not  entitled  to  demand  a 
written  assignment  of  the  bond  and  mortgage,  but  that  after 
redemption  he  stands  in  the  place  of  the  mortgagee,  and  will 
be  subrogated  to  his  rights  against  the  mortgagor  and  of  those 
claiming  under  him.  He  will  have  the  right  to  require  the 
bond  and  mortgage  to  be  delivered  to  him  uncancelled,  and 
this,  in  such  a  case,  is  in  equity,  and  may  be  at  law,  a  com- 
plete assignment.^^ 

§  1129.  Tenant  in  common. — A  tenant  in  common  ot 
mortgaged  lands  may  redeem  from  the  mortgage  lien  in 
order  to  protect  his  interest  where  he  has  not  been  guilty  of 
laches,  or  otherwise  estopped ;  ®^  but  he  will  not  thereby  acquire 
a  right  to  the  whole  estate  to  the  exclusion  of  his  co-tenants, 
and  should  he  take  to  himself  a  transfer  of  the  legal  title  the 
share  of  the  mortgage  which  it  belonged  to  him  to  pay  be- 
comes extinguished  and  his  title  in  his  own  portion  of  the  land 
will  be  perfected ;  but  as  to  the  residue  he  becomes  subrogated 
to  the  rights  of  the  mortgagee  and  can  call  upon  his  co-tenants 
to  contribute  their  share  or  be  foreclosed  of  their  right  to 
redeem.^* 

In  the  case  of  Crafts  v.  Crafts,*^  where  one  tenant  in  com- 
mon of  real  estate  conveyed  to  two,  paid  his  half  of  the  pur- 
chase money,  and  joined  with  his  co-tenant  in  a  note  and 
mortgage  to  secure  the  pa3'ment  of  the  other  half,  and  after- 
wards released  his   interest  on   the  land  to  the  mortgagee, 

823;  Kebabian  v.  Shinkle,  26  R.  I.  203,    113   Pac.  267.     See  Simonson 

505,  59  Atl.  743.  v.  Lauck,  105  App.  Div.  82,  93  N.  Y. 

8119    N.    J.    Eq.    (4    C.    E.    Gr.)  Supp.   965;    Harding   v.   Gillett,  25 

227.  Okl.  199,  107  Pac.  665;  McQueen  v. 

82  As  to  assignment  of  mortgage  Whetstone  as  ad:nr,  etc.   127  Ala. 

on  redemption.     See  ante,  §  1035.  417,  30  So.  548.    See  also  Dougherty 

^^  Norton  v.  Sharp,  53  Mich.  146,  v.   Ktibat,  67  Neb.   269,  93   N.   W. 

18  N.  W.  601.  317;  Green  v.  Walker,  22  R.  I.  14. 

84  Yonng   v.    Williams,    17   Conn.  45  Atl.  742. 
39^;  McSorley  V.  Lindsay,  62  \Ndish.  8579  Mass.   (13  Gray)  360. 


§    1133]  REDEMPTION.  1525 

the  supreme  judicial  court  of  Massachusetts  held  that  his  co- 
tenant,  or  one  claiming  under  him  with  notice  of  the  facts. 
could  not  redeem  the  estate  without  paying  the  full  amount  of 
the  mortgage.^^ 

§1130.  Tenant  in  tail. — It  is  thought  that  the  case  of 
Playford  v.  Playford  "  is  authority  for  the  proposition  that 
a  tenant  in  tail  has  such  an  interest  in  the  lands  as  will  en- 
title him  to  redeem  from  a  mortgage  lien ;  but  this  estate  is  of 
such  rare  occurrence  in  this  country  that  the  proposition  has 
more  theoretical  than  practical  importance. 

§  1131.  Title  Insurance  Company — May  not  redeem, 
when. — It  is  held  that  a  title  insurance  company  which  has 
insured  the  title  of  certain  parties  to  land  derived  through 
a  foreclosure  sale  has  not  such  an  interest  in  the  land,  within 
the  meaning  of  the  New  York  statute,*^  as  to  entitle  it  to  be 
made  a  party  defendant  in  an  action  to  redeem  from  the  lien 
of  the  mortgage,  where  there  is  no  charge  of  misconduct 
against  the  insured,  and  it  will  give  the  company  an  unfair 
opportunity  to  protect  its  interests  without  being  defendant. ^^ 

§  1132.  Trustee  of  absent  debtor. — It  has  been  held 
that  the  trustee  of  an  absent  debtor  has  such  an  interest  in 
the  land  as  will  entitle  him,  under  certain  circumstances,  to 
redeem  from  the  lien  of  the  mortgage. 

§  1133.  Wife  joining  in  mortgage. — We  have  already 
seen  ^^  that  the  wife's  right  of  inchoate  dower  in  mortgaged 
lands  is  a  sufficient  title  to  enable  her  to  redeem  them  from 

86  See  Lyon  v.  Robbins,  45  Conn.  ^7  4  Hare,  546. 

518;   Seymour  v.  Davis,  35   Conn.  88  n.  Y.  Code  Civ.   Proc.   §  452 

264;   Kingbury  v.  Buckner,  70  111.  ^^  Russ  v.  Stratton,  8  Misc.    (N. 

514;    Craithers   v.    Stuart,  87   Ind.  Y.)  6,  28  N.  Y.  Supp.  392,  59  N.  Y. 

424;  Laylin  v.  Knox,  41  Mich.  40,  S.  R.  384. 

1   N.  W.  913;    Wynne  v.   Styan,  2  90  See  ante,  §   1126. 
Phil.  Ch.  306. 


1526  MORTGAGE    FORECLOSURES.  [§    1133 

the  lien  of  the  mortgage. ^^  It  has  been  said  that  a  wife  who, 
solely  to  relinquish  her  right  of  dower  and  homestead  joined 
with  her  husband  in  a  deed  of  lands  conveyed  to  them  by 
entireties  and  not  by  moieties,  is  not  estopped  from  redeem- 
ing from  a  previous  mortgage  thereon,  notwithstanding  her 
agreements  and  admissions,  made  under  her  misapprehen- 
sion as  to  her  right  of  property,  and  without  intent  to  de- 
ceive.^^  And  where  a  wife  who  is  a  part  owner  of  the  mort- 
gaged premises  is  not  made  a  party  to  an  action  to  foreclose, 
she  will  be  entitled  to  redeem,  although  her  husband  was  made 
a  party  and  his  right  in  the  remainder  of  the  land  foreclosed. ^^ 
The  supreme  court  of  Michigan,  in  the  recent  case  of 
Moore  v.  Smith,^*  say  that  a  wife  holding  a  homestead  and 
dower-right  is  entitled  not  only  to  redeem  from  a  mortgage 
on  the  homestead,  of  which  a  statutory  foreclosure  has  been 
Iiad,  but  to  have  an  assignment  thereof  upon  payment  to 
'the  mortgagee  of  the  amount  bid  at  the  sale,  although  she 
'has  made  no  tender  of  the  amount  due,  where  it  has  been 
foreclosed  by  notice  published  in  an  obscure  village  paper,  in- 
stead of  in  the  city  where  the  property  is  situated,  and  the 
mortgagee  has,  by  every  effort  in  his  power,  aided  by  the 
husband,  attempted  to  prevent  her  from  raising  the  money 

^1  Frain  v.  Burgett,   152  Ind.  55,  ^^  Green  v.  Dixon,  9  Wis.  532. 

50  N.   E.  873,  52  N.  E.  395.     See  A  wife  is  entitled,  under  a  stat- 

McMichael  v.  Russell,  68  App.  Div.  ute  giving  the  right  to  redeem  to 

104,   74   N.    Y.    Supp.   212;   North-  anyone  who  has  an   undivided  in- 

western    Trust    Co.    v.    Ryan,    115  terest  in  the  real  estate,  during  the 

Minn.  143,  132  N.  W.  202;  Roberts  life  of  her  husband,  to  redeem  his 

V.  Fleming,  53  111.  196;  Vaughan  v.  lands  from  a  sale  made  on  foreclo- 


Dowden,  126  Ind.  406,  26  N.  E.  74 
Pierce  v.  Chance,  108  Mass.  254 
Anthony  v.  Pierce,  108  Mass.  251 
Moore  v.  Smith,  95  Mich.  71,  54  N 


sure  of  a  mortgage  made  by  him 
thereon  in  which  she  joined,  and 
to  the  proceedings  to  foreclose  to 
which  she  was  a  party.     Vaughan 


W.   701;    Williams   v.    Stewart,   25      v.  Dowden,  126  Ind.  406,  26  N.  E. 

Minn.  516;  Green  v.  Dixon,  9  Wis.       74. 

532.  9495  Mich.  71,  54  N.  W.  701. 

92  Pierce  v.  Chance,  108  Mass. 
254;  Anthony  v.  Pierce,  108  Mass. 
251. 


§    1134]  REDEMPTION.  1527 

to  acquire  his  interest  or  redeem  from  the  foreclosure  sale, 
and  succeeded  in  preventing  her  from  using  the  property,  and 
in  taking  away  from  her  other  property  which  she  had,  and 
forcing  her  to  institute  a  lawsuit  to  retain  her  personal  prop- 
€rty.»'^ 

The  supreme  judicial  court  of  Massachusetts,  in  the  case 
of  Lamb  v.  Montague,^®  say  that  where  one's  equity  of  re- 
demption has  been  sold  by  his  assignee  in  bankruptcy,  the 
mortgagor  and  his  wife  having  a  homestead,  and  she  an 
inchoate  right  of  dower  in  the  mortgaged  premises,  they  may 
maintain  a  bill  to  redeem,  although  not  entitled  to  an  assign- 
ment of  the  mortgage.  And  it  has  also  been  held  that  the 
wife  has  the  right  to  redeem  although  her  husband  is  still 
alive  and  her  right  of  dower  inchoate  only.^' 

§  1134.  Widow  may  redeem. — AVhere  a  wife  joins  with 
her  husband  in  the  execution  of  a  mortgage  on  his  land,  her 
rights  and  interests  remaining  in  the  land  are  such  as  to 
render  it  proper  that  she  should  be  made  a  party  to  the 
foreclosure  of  the  mortgage;  and  if  she  is  not  made  a  party 

95  In  Roberts  v.  Fleming,  53  111.  with  the  right  to  redeem  from  the 
196,  while  the  right  of  redemption  senior  mortgage,  and  that  upon  bill 
from  a  mortgage  still  existed,  a  filed  for  redemption,  by  the  party 
junior  mortgagee  executed  an  so  invested  with  the  right  to  re- 
agreement  by  which  he  agreed  to  deem,  the  junior  mortgagee  should 
sell  and  convey  all  his  interest  in  be  made  a  party,  because  the  terms 
the  mortgaged  premises  for  a  cer-  of  the  agreement  by  which  he  trans- 
tain  sum,  but  payment  was  not  to  ferred  his  interest  remained  un- 
be  made  unless  the  right  of  the  executed,  leaving  equities  to  be  set- 
party  purchasing,  or  his  assigns,  to  tied  between  him  and  the  party 
redeem  from  the  senior  mortgage,  with  whom  he  contracted.  Had  he 
should  be  established.  This  agree-  executed  a  deed,  he  would  not  have 
ment  was  assigned  to  the  wife  of  been  a  necessary  party, 
the  mortgagor.  Then  the  mort-  ^^  112  Mass.  352. 
gagor  and  his  wife  executed  a  quit-  ^"^  Mackenna  v.  Fidelity  Trust  Co. 
claim  deed  for  the  premises,  and  the  of  Buffalo,  184  N.  Y.  411,  3  L.R..^. 
grantee  therein  released  to  the  wife  (X.S.)  1068.  112  Am.  St.  Rep.  620, 
of  the  mortgagor.  Court  held  that  77  N.  E.  721. 
the   wife   thereby   became    invested 


1528 


MORTGAGE    FORECLOSURES, 


[§  1134 


the  foreclosure  stands  for  nothing  as  against  her.^^  In  such 
a  case  the  wife,  after  the  death  of  her  husband,  may  redeem,^* 
but  she  can  do  so  only  by  paying  the  whole  mortgage  debt, 
and  not  merely  upon  repayment  of  the  price  paid  by  the 
purchaser,  where  that  price  is  less  than  the  amount  of  the 
mortgage  debt.^  A  widow  in  possession  of  a  portion  of  the 
mortgaged  premises,  as  dowress  under  her  right  of  quarantine 
is  entitled  to  have  her  estate  protected  by  redeeming  from  the 
mortgage.^ 


98McGough  v.  Sweetser,  97  Ala. 
361,  12  So.  162,  19  L.R.A.  470.  See 
Eslava  v.  Lepretre,  21  Ala.  504,  56 
Am.  Dec.  266;  Dough  v.  McLoskey, 
1  Ala.  78;  Leonard  v.  Villars,  23 
III.  2)77 ;  Gibbery  v.  Maggord,  2  111. 
471 ;  Gibson  v.  Crehore,  22  Mass. 
(5  Pick.)  151;  Miles  v.  Voorhies, 
20  N.  Y.  412,  10  Abb.  (N.  Y.)  Pr. 
152;  Denton  v.  Nanny,  8  Barb.  (N. 
Y.)  618;  McArthur  v.  Franklyn,  15 
Ohio  St.  485,  16  Ohio  St.  193. 

99  See  Hillcr  v.  Nelson,  118  S.  W. 
292  (Ky.)  ;  Hays  v.  Cretin,  102  Md. 
695,  4  L.R.A. (N.S.)  1039,  62  Atl. 
1028.  But  see  Robbins  v.  Brown, 
151  Ala.  236,  44  So.  63;  Gandy  v. 
Tippett,  155  Ala.  296,  46  So.  463. 

1  McGough  v.  Sweetser,  97  Ala. 
361,  12  So.  162,  19  L.R.A.  470.  See 
McCabe  v.  Bellows,  71  Mass.  (7 
Gray)  148,  66  Am.  Dec.  467 ;  New- 
ton V.  Cook,  70  Mass.  (4  Gray)  46; 
Gibson  v.  Crehore,  22  Mass.  (5 
Pick.)  151;  Chiswell  v.  Morris,  14 
N.  J.  Eq.  (1  McCar.)  101;  Denton 
V.  Nanny.  8  Barb.  (N.  Y.)  618; 
Wheeler  v.  Morris,  2  Bosw.    (N. 


Y.)  524;  Ross  v.  Boardman,  22 
Hun  (N.  Y.)  527;  McArthur  v. 
Franklyn,  16  Ohio  St.  193;  Collins 
V.  Riggs,  81  U.  S.  (14  Wall.)  491, 
20  L.  ed.  723. 

On  a  bill  to  redeem,  brought  by 
the  mortgagor's  widow  in  order  to 
be  let  into  her  dower,  the  mort- 
gagee is  liable  to  account  to  her  for 
the  rents  and  profits  received  from 
the  date  of  his  entry  into  posses- 
sion under  the  mortgage,  and  not 
merely  from  the  date  of  her  de- 
mand. Dela  V.  Stanwood,  62  Me. 
574. 

Where  the  estate  of  a  decedent 
has  been  declared  insolvent,  and 
property  has  been  set  apart  to  his 
widow  as  a  homestead,  within  the 
prescribed  time,  she  has  no  right  of 
redemption  from  a  sale  of  such 
property  under  a  mortgage  given 
by  her  husband  and  herself  while 
the  property  was  being  used  as  a 
family  homestead.  Walden  v. 
Speigner,  87  Ala.  379,  6  So.  80. 

2  Merselis  v.  Van  Riper,  55  N.  J. 
Eq.  618.  38  Atl.  196. 


CHAPTER  XL. 

REDEMPTION— TIME  OF  REDEMPTION. 

§  1135.  In  general. 

§  1136.  Before   maturity. 

§  1137.  After  maturity— Before   foreclosure. 

§  1138.  Same — Same — When  mortgagor  remains  in  possession. 

§  1139.  After  foreclosure — Generally. 

§  1140.  Same — After  lapse  of  years. 

§  1141.  Same — Computation  of  time. 

§  1142.  Same — By  junior  lienholder. 

§  1143.  Same — Receipt    of    rents    and    profits    by    mortgagee — Effect    on 

right. 
§  1144.  Same — Fraud — Effect   on    redemption. 

§  1145.  Extension  of  time  to  redeem — By  agreement  of  parties. 
§  1146.  Same — By  court  on  statutory  foreclosure. 
§  1147.  Same — By  court   of   equity,   when. 

S  1148.  Same — Disability   of    infancy,   imprisonment   or    insanity. 
§  1149.  Where    mortgagee   purchases    at    foreclosure    sale. 

§  1135.  In  general. — The  time  within  which  redemption 
may  be  made  from  the  hen  of  a  mortgage  is  regulated  by  stat- 
ute in  most,  if  not  all,  the  states.  There  is  a  sad  want  of 
uniformity  in  these  statutory  provisions.  Under  some  stat- 
utes a  certain  time  must  elapse  after  default  before  proceed- 
ings in  foreclosure  can  be  commenced ;  under  some  a  specified 
time  (varying  in  almost  every  statute)  is  given  within  which 
to  redeem  after  proceedings  in  foreclosure  are  instituted ; 
under  some  no  sale  can  be  made  of  the  mortgaged  premises  for 
a  specified  length  of  time  (also  varying)  after  the  decree 
of  foreclosure  is  entered;  under  some  a  sale,  when  properly 
made  and  confirmed,  cuts  off  all  right  of  redemption  and  vests 
the  property  absolutely  in  the  purchaser:  and  under  others  a 
specified  time  (not  uniform  in  length)  after  sale  is  given  in 
which  redemption  may  be  made.     Whatever  the  provision  of 

1529 


1530 


MORTGAGE    FORECLOSURES. 


[§  1135 


the  statute,  it  must  be  strictly  complied  with  by  the  party  seek- 
ing- to  redeem.' 


3  See  IVood  v.  Holland,  53  Ark. 
69,  13  S.  W.  739;  Collins  v.  Scott. 
100  Cal.  446,  34  Pac.  1082;  Mcll- 
wain  V.  Karstens,  152  111.  135,  38 
N.  E.  555 ;  Sutterlin  v.  Connecticut 
Mut.  L.  Ins.  Co.  90  111.  483 ;  Munn 
V.  Buyer,  70  111.  604;  McCagg  v. 
Heacock,  34  111.  476,  85  Am.  Dec 
327;  Lynch  v.  Jackson,  28  111.  App. 
160 ;  Lindsey  v.  Delano,  78  Iowa, 
350,  43  N.  W.  218 ;  Hum  v.  Hill,  70 
Iowa,  38,  29  N.  W.  796;  Sterling 
Mfg.  Co.  V.  Early,  69  Iowa,  94 
28  N.  W.  458;  Wakefield  v.  Rother- 
ham,  67  Iowa,  444.  25  N.  W.  697 
Gargon  v.  Gargon,  47  Iowa,  180 
Mayer  v.  Farmers'  Bank,  44  Iowa 
212;  Crawford  v.  Taylor,  42  Iowa 
260;  Flucher  v.  Hiatt,  23  Iowa,  327 
90  Am.  Dec.  440;  Sheldon  v 
Pruessner,  52  Kan.  593,  35  Pac 
204;  Henkel  v.  Mix,  38  La.  An 
271 ;  Emmons  v.  Van  Zee,  78  Mich 
171,  43  N.  W.  1100;  Newman  v 
Locke,  66  Mich.  27,  66  N.  W.  27 
McHugh  V.  Wells,  39  Mich.  175 
Gates  V.  Ege,  57  Minn.  465,  59  N. 
W.  495 ;  Parsons  v.  Noggle,  23 
Minn.  328;  Carroll  v.  Rossiter,  10 
Minn.  174;  Gordon  v.  Lewis,  88 
Mo.  378;  i?ez7/3»  v.  Phillips,  4  S.  D. 
604,  57  N.  W.  780;  Connecticut  Mut. 
L.  Ins.  Co.  V.  Cushman,  108  U.  S 
51,  27  L.  ed.  648,  2  Sup.  Ct.  Rep. 
236;  Mason  v.  Northwestern  Mut. 
L.  Ins.  Co.  106  U.  S.  163,  27  L.  ed. 
129,  1  Sup.  Ct.  Rep.  165;  Burley  v. 
Flint,  105  U.  S.  247,  26  L.  ed.  986 ; 
Swift  V.  Smith,  102  U.  S.  442,  26  L. 
ed.  986;  Orvis  v.  Powell,  98  U.  S. 
176,  25  L.  ed.  238;  Allis  v.  North- 
western Mut.  L.  Ins.  Co.  97  U.  S. 
144,  24  L.  ed.  1008;  Birne  v.  Hart- 


ford Fire  Ins.  Co.  96  U.  S.  677,  24 
L.  ed.  858;  Howard  v.  Bugbee,  65 
U.  S.  (24  How.)  461,  16  L.  ed.  753; 
Simmons  V.  Taylor,  38  Fed.  682 ; 
Blair  v.  Chicago,  etc.  R.  Co.  12 
Fed.  750;  National  Permanent  Mut. 
Benef.  Bldg.  Soc.  v.  Paper,  (1892) 
1  Ch.  54. 

In  Alabama  two  years  is  given  by 
statute  in  which  to  redeem.  Drum 
&  Esekiel  v.  Bryan,  145  Ala.  686, 
40  So.   131.     (Code  1896,  §  3505.) 

In  Arkansas  the  time  within 
which  to  redeem  is  one  year,  wheth- 
er the  debt  be  for  purchase  money 
or  otherwise.  Wood  v.  Holland,  53 
Ark.  69,  13  S.  W.  739. 

In  California  redemption  from 
sale  made  under  valid  foreclosure 
proceedings  is  restricted  to  six 
months  by  Code  Civ.  Proc.  §  702, 
Collins  v.  Scott,  100  Cal.  446,  34 
Pac.  1082. 

In  Illinois  the  owner  of  a  claim 
allowed  against  an  estate  must  take 
the  special  execution  provided  for 
in  111.  Stat.  chap.  77,  27,  within 
seven  years  from  the  time  the  claim 
is  allowed,  in  order  to  redeem  from 
a  foreclosure  sale  of  land  of  the 
deceased  debtor.  Mcllwain  v.  Kars- 
tens, 152  111.  135,  38  N.  E.  555. 

In  Iowa,  in  the  case  of  Wakefield 
v.  Rothcrham,  67  Iowa,  444,  25  N. 
W.  697,  the  owner  of  land  sold  to 
the  county  on  foreclosure  of  a 
school  fund  mortgage  in  Iowa,  paid 
to  the  clerk,  to  redeem  the  amount 
demanded  by  the  clerk  supposing 
that  he  was  paying  all  that  was 
due,  while  in  fact  the  amount  was 
a  few  dollars  short.  The  court 
held  that  after  the  year  allowed  by 


§  1135] 


REDEMPTION. 


1531 


the  statute  for  redemption,  he  could 
pay  the  balance  and  redeem,  al- 
though the  purchaser  had  obtained 
a  sheriff's  deed  on  his  certificate  of 
purchase. 

In  Michigan  the  right  of  redemp- 
tion from  foreclosure  sale  under 
advertisement  is  defeated  by  gross 
laches.  Emmons  v.  Van  Zee,  78 
Mich.  171,  43  N.  W.  1100. 

Under  Act  No.  200,  Pub.  Acts 
1899,  §§  111,  118,  redemption  must 
be  made  within  six  months  from 
the  time  of  sale.  Trombley  v. 
Klersy,  147  Mich.  370,  110  N.  W. 
940. 

In  Minnesota  one  year  in  which 
to  redeem  is  given  by  the  statute 
(Minn.  Gen.  Stat.  1878,  c.  81,  §§  13. 
14)  and  an  action  to  redeem  will  be 
dismissed  where  it  clearly  appears 
to  the  court  that  the  plaintiff  has 
permitted  the  period  fixed  by  stat- 
ute to  elapse  before  comntencing 
proceedings.  Gates  v.  Ege,  57 
Minn.  465,  59  N.  W.  495;  Parsons 
V.  N aggie,  23  Minn.  328;  Allis  v. 
Northwestern  Mut.  L.  Ins.  Co.  97 
U.  S.  144,  24  L.  ed.  1008. 

The  supreme  court  in  the  case  of 
Parsons  v.  Naggle,  23  Minn.  328, 
say  that  the  time  within  which  an 
action  to  redeem  must  be  brought 
is,  in  analogy  of  the  statute  of 
limiting  the  time  for  commencing 
an  action  to  foreclose,  is  ten  years ; 
and  the  time  for  the  mortgagor 
to  bring  his  action  to  redeem  is  not 
extended  by  the  fact  that,  owing  to 
the  mortgagor  being  out  of  the 
state,  the  mortgagee  may  bring  his 
action  to  foreclose  after  ten  years. 

Under  this  statute  it  is  said  that 
a  decree  ordering  the  master,  or 
making  a  sale,  to  deliver  to  the  pur- 
chaser a  certificate  that,  unless  the 
property  is  redeemed  within  twelve 


months  after  the  sale,  he  will  be 
entitled  to  a  deed,  gave  substantial 
effect  to  the  equity  of  redemption 
secured  by  the  statute,  although  the 
court  intended  to  defer  the  order 
confirming  the  sale  until  the  end 
of  the  twelve  months.  Allis  v. 
Northwestern  Mut.  L.  Ins.  Co.  97 
U.  S.  144,  24  L.  ed.  1008. 

In  Missouri  the  statute  of  limita- 
tions applies  to  suits  to  redeem. 
Gordon  v.  Lewis,  88  Mo.  378.  The 
time  usually  allowed  by  a  court  of 
equity  is  six  months.  Stephenson 
V.  Kilpatrick,  166  Mo.  262,  65  S.  W. 
773. 

In  New  York  under  the  code 
(§  379)  20  years  is  the  limitation  of 
a  suit  to  redeem  from  the  grantee 
of  a  mortgagee  who  purchased  at 
the  foreclosure  sale,  with  a  possiBle 
addition  of  only  one  year  in  the 
case  of  infancy  (§  396)  or  of  five 
years  in  case  of  insanity  or  im- 
prisonment. Messinger  v.  Foster, 
115  App.  Div.  689,  101  N.  Y.  Supp. 
387. 

In  New  York  where  a  deed  is 
given  with  the  privilege  to  the 
grantors  of  repurchasing  or  re- 
deeming within  three  years  by  pay- 
ing all  indebtedness,  the  privilege 
is  not  extinguished  by  failure  to 
exercise  it  within  the  period  speci- 
fied. Conover  v.  Palmer,  123  App. 
Div.  817,   108  N.  Y.  Supp.  480. 

1)1  South  Dakota — Minor  liens 
shown  no  favors.  The  court,  in 
Reilly  V.  Phillips,  4  S.  D.  604.  57 
N.  W.  780,  say  that  in  the  absence 
of  any  statutory  exception  in  favor 
of  minor  heirs,  giving  them  other 
or  further  rights  than  are  given  by 
the  statute  (Dak.  Comp.  L.  5421) 
fixing  a  definite  time  for  redemp- 
tion after  sale  under  a  power  con- 
tained in  a  real  estate  mortgage,  no 


1532 


MORTGAGE    FORECLOSURES. 


[§  1135 


In  the  absence  of  any  statute  regulating,  it  rests  in  the 
sound  discretion  of  a  court  of  equity,  governed  by  the  equities 
of  each  case,  to  name  the  time  within  which  it  will  let  in  a 
party  to  a  mortgage  foreclosure  to  redeem.*  The  party  seek- 
ing to  redeem  from  an  equitable  mortgage  cannot  object  to 
the  shortness  of  the  time  fixed  by  the  court,  for  the  reason 
that  he  is  regarded  as  bringing  in  and  tendering  the  amount 


relief  can  be  granted  such  heirs 
after  the  time  for  redemption  has 
expired. 

Widows  are  excepted  from  the 
general  rule  in  some  states.  Thus 
the  supreme  court  of  Indiana,  in 
the  case  of  Bar  v.  Valentine,  120 
Ind.  590,  22  N.  E.  965,  say  that 
widow  is  entitled  to  fifteen  years 
from  the  death  of  her  husband  in 
which  to  redeem  from  a  foreclosure 
of  a  mortgage  given  by  her  husband 
alone  for  the  purchase  price  of  land, 
and  foreclosed  in  his  lifetime, 
where  she  was  not  made  a  party; 
and  she  is  not  bound  to  make  a 
demand  or  tender  as  a  condition 
precedent  to  bringing  an  action  to 
redeem. 

^Hanna  v.  Davis,  112  Mo.  599,  20 
S.  W.  599.  See  Burgess  v.  Ruggles, 
146  111.  506,  34  N.  E.  1036;  Bremer 
V.  Calumet  &  C.  Canal  &  D.  Co. 
127  111.  464,  18  N.  E.  321 ;  Decker  v. 
Patton,  120  111.  464,  11  N.  E.  897, 
aff'g  20  111.  App.  210;  Moynusson 
V.  Charlson,  32  111.  App.  580;  Gleiser 
V.  McGregor,  85  Iowa,  489,  52  N. 
VV.  306;  Flanders  v.  Hall,  159  Mass. 
95,  34  N.  E.  178;  Mules  v.  Stehle, 
22  Xeb.  740,  36  N.  W.  142;  Smith 
V.  Hesketh,  L.  R.  44  Ch.  Div.  161 ; 
Mahaffy  v.  Paris,  144  Iowa,  220,  24 
L.R.A.(N.S.)  840,  122  N.  W.  934. 
See  also  Williams  v.  Bolt,  136  N. 
W.  472. 

In  Illinois  the  time  usually  adopt- 


ed is  six  months  (Bremer  v.  Calu- 
met &  C.  Canal  &  D.  Co.  127  111. 
464,  18  N.  E.  321 ;  Decker  v.  Patton, 
120  111.  464,  11  N.  E.  897,  aff'g  20 
111.  App.  210),  but  the  time  rests 
in  the  sound  discretion  of  the  court 
in  view  of  all  of  the  circumstances. 
Bremer  v.  Calumet  &  C.  Canal 
&  D.  Co.  127  111.  464,  18  N.  E.  321. 

In  Iowa  it  is  held  that  six  months 
is  a  reasonable  time  within  which, 
redemption  may  be  made  where 
occupied  and  held  by  another  as 
security  for  a  debt.  Gleiser  v.  Mc- 
Gregor, 85  Iowa,  489,  52  N.  W.  366. 

In  Nebraska  it  is  said  that  where 
a  purchaser  in  good  faith  under  a 
decree  of  foreclosure  of  a  senior 
mortgage  files  a  bill  to  require  a 
junior  incumbrancer,  not  a  party 
to  the  action,  to  redeem  within  a 
day  to  be  named,  or  be  barred  of 
the  right,  and  it  does  not  appear 
that  the  premises,  if  sold,  would 
satisfy  the  liens  prior  to  that  of 
the  junior  incumbrance,  a  decree 
of  strict  foreclosure  may  be  ren- 
dered requiring  such  junior  incum- 
brancer to  redeem  the  prior  incum- 
brances within  a  reasonable  time, 
to  be  named  in  the  decree,  or  be 
barred  of  the  right  of  redemption. 
Miles  V.  Stehle,  22  Neb.  740,  36  N. 
W.  142. 

In  New  Hampshire  a  year  is  the 
time  usually  fixed.    Murphy  v.  New 


1135] 


REDEMPTION. 


1533 


that  shall  be  found  due.^  Hence  a  decree  passing  upon  certain 
questions  and  effectually  foreclosing  certain  mortgages,  fix- 
ing the  time  within  which  the  redemption  shall  take  place, 
effectually  bars  an  action  brought  after  such  time  by  the  par- 
ties or  their  privies,  in  which  the  same  matters  are  presented.^ 
Should  the  party,  through  his  own  carelessness,  fail  to  know 
the  time  within  which  redemption  is  to  be  made  he  is  not  en- 
titled to  relief  in  equity^  Thus,  it  has  recently  been  held  by 
the  supreme  court  of  Illinois,  in  the  case  of  Burgess  v.  Rug- 
gles,*  that  a  mortgagor  who  fails  to  execute  a  right  given 
him  by  a  decree  against  a  voidable  sale,  allowing  him  to  re- 
deem wathin  a  certain  time,  loses  all  right  of  redemption,  and 
cannot  secure  such  right  by  having  a  decree  in  behalf  of  a 
purchaser  under  levy  upon  his  supposed  interest  adjudged  to 
be  in  his  favor  and  for  his  benefit.  It  is  said  in  Kalscheuer  v. 
Upton,^  that  a  provision  as  to  the  redemption  from  prior  lien- 


Hampshire  Savings  Bank,  63  N.  H. 
362. 

In  England,  where  the  plaintiffs 
in  a  foreclosure  action  were  first 
and  third  mortgagees,  and  the  sec- 
ond incumbrancer  was  a  jointress, 
and  there  were  several  subsequent 
mortgagees,  an  order  was  made 
giving  the  jointress  six  months  to 
redeem;  in  case  she  did  redeem, 
giving  three  months  to  the  plain- 
tiffs, as  third  mortgagees,  to  re- 
deem subject  to  the  jointure,  and  a 
third  period  of  three  months  to  the 
subsequent  incumbrancers ;  but  if 
she  did  not  redeem,  giving  them 
a  second  period  only  of  three 
months.  Smithctt  v.  Hesketh,  L.  K. 
44  Ch.  Div.   161. 

^  Hagmiisson  v.  Charhon.  32  111. 
App.  580. 

^Flanders  v.  Hall,  159  Mass.  95, 
34  N.  E.  178.  See  Burgess  v.  Rug- 
gles,  146  111.  506,  34  N.  E.  1035; 
Francis  v.  Parks,  55  Vt.  80 ;  Parker 


V.  Oacres,  130  U.  S.  43,  32  L.  ed. 
848,  9  Sup.  Ct.  Rep.  433. 

'  Francis  v.  Parks,  55  Vt.  80.  See 
Burgess  v.  Ruggles,  146  111.  506,  34 
N.  E.  1035;  Parker  v.  Oacres,  130 
U.  S.  43,  32  L.  ed.  848,  9  Sup.  Ct. 
Rep.  433. 

A  court  of  equity  should  refuse 
aid,  say  the  United  States  supreme 
court,  in  the  case  of  Parker  v. 
Oacres,  supra,  to  a  party  asserting 
under  the  state  of  Washington  Ter- 
ritory, a  right  of  redemption,  who 
has  neglected,  without  sufficient 
cause,  before  the  expiration  of  six 
months  from  the  confirmation  of 
the  sale,  to  invoke  the  authority  of 
the  proper  court  or  judge  to  compel 
the  recognition  of  such  right  by 
the  officer  whose  duty  it  was,  un- 
der the  statute,  to  accept  a  tender 
made   in   conformity  with  the  law. 

8  146  III.  506,  34  N.  E.  1035. 

943  N.  W.  816. 


1534  MORTGAGE    FORECLOSURES.  [§    1136 

holders  "at  an}^  time  after  the  claim  is  clue,"  is  for  their 
benefit,  and  can  be  waived  by  them  if  they  choose  to  do  so  by 
accepting  payment  of  claims  before  they  are  due. 

§  1136.  Before  maturity. — The  general  rule  is  that  the 
right  of  redemption  cannot  be  enforced  until  the  mortgage 
debt  is  due,^°  and  this  is  true  even  though  the  interest  for 
the  full  time  be  paid  or  tendered,-'^  unless  by  the  terms  of 
the  instrument  the  debt  is  made  payable  "at  or  before"  a 
certain  day,  in  which  case  redemption  may  be  made  at  any 
time.^^  In  such  a  case  the  mortgagor  cannot  be  compelled 
to  keep  the  money  and  pay  interest  until  the  day  specified 
by  the  mortgage.''^ 

But  the  supreme  court  of  Iowa,  in  the  case  of  Wheeler  v. 
Menold,^*  say  that  a  junior  mortgagee  of  lands,  who  was 
ignorant  when  he  took  his  mortgage  that  the  payment  of 
debts  secured  by  senior  mortgages  had  been  extended  after 
maturity,  can  enforce  his  right  to  redeem  and  foreclose  be- 
fore the  maturity  of  the  debts  under  the  new  contract,  as 
he  is  not  bound  by  the  contract  of  extension. 

§  1137.  After  maturity — Before  foreclosure. — The  right 
to  redeem  being  a  right  to  pay  the  debt  and  have  the  lien 
discharged,  it  is  thought  that  this  may  be  done  at  any  time 
before  foreclosure ;  ^^  but  this  is  a  matter  controlled  almost 

^°  See  Abbe  v.  Goodwin,  7  Conn.  gage  money  at  any  time  after  the 

377;   Saunders  v.  Frost,  22   Mass.  execution  of  the  mortgage,  it  might 

(5    Pick.)    267,    16   Am.   Dec.   394;  be    attended    with    extreme    incon- 

Kiugman  v.  Pierce,   17  Mass.  247;  venience  to  mortgagees.     Brown  v. 

In  re  John.  &  Cherry  Sis.  19  Wend.  Cole,  14  L.  J.   (N.  S.)    Ch.  168. 

(N.    Y.)    659;    Moore   v.    Cord,    14  ^^ In  re  John.  &  Cherry  Sts.  19 

Wis.  213;  Brown  v.  Cole,  14  Sim.  Wend.  (N.  Y.)  659. 

426.  14  L.  R.  (N.  S.)  Ch.  168.  i3/„  re  John.  &  Cherry  Sts.   19 

^1  The   reason    for   this   rule  has  Wend.  (N.  Y.)  659. 

been  said  to  be  because  mortgagees  l*  81  Iowa,  647,  47  N.  W.  871. 

generally   advance   their   money   as  is  Right  of  redemption  continues 

an   investment,  and,   if   mortgagors  until  the  sale.     Atwood  v.  Carmer, 

were  allowed  to  pay  off  their  mort-  75  N.  J.  Eq.  319,  73  Atl.  114. 


§    1138]  REDEMPTION.  1535 

entirely  by  local  statutes,  the  provisions  of  which  must  be 
looked  to  in  each  instance."  Thus,  in  Calif ornia,^'^  the  mort- 
gagor is  entitled  to  redeem  at  any  time  after  the  principal 
obligation  becomes  due,  regardless  of  the  statute  of  limi- 
tations." And  in  Massachusetts,"  under  a  mortgage  with  a 
power  of  sale,  the  mortgagor  may,  after  breach  of  the  con- 
dition but  before  a  sale  without  a  previous  tender,  bring  a 
bill  in  equity  to  redeem  the  land,  offering  in  it  to  pay  what 
is  due.^°  The  North  Dakota  statute  ^^  provides  that  every 
person  having  an  interest  in  property  subject  to  a  lien  has  a 
right  to  redeem  it  from  the  lien  at  any  time  after  the  claim  is 
due,  and  before  his  right  of  redemption  is  foreclosed. ^^ 

§  1138.  Same — Same — When  mortgagor  remains  in 
possession. — It  is  thought  that  the  right  of  redemption  is 
not  lost  by  lapse  of  time  when  the  mortgagor  remains  in 
possession,  and  occupies  for  himself  and  not  for  the  mort- 
gagee. This  doctrine  was  laid  down  by  the  supreme  judi- 
cial court  of  Maine,  in  the  case  of  Bird  v.  Keller,  ^^  and  the 
court  say :  "It  is,  however,  claimed  that  the  right  of  redemp- 
tion is  barred  by  lapse  of  time,  which,  under  a  certain  state 
of  facts,  might  occur.  So  a  lapse  of  time  of  sufficient  length 
would  raise  a  presumption  of  payment.  But  both  these  facts 
do  not  exist  in  relation  to  the  same  mortgage  at  the  same 
time.  Whether  the  one  or  the  other  will  prevail,  must  depend 
upon  the  possession.  If  the  mortgagor  were  in  possession  for 
twenty  years  after  the  debt  became  payable,  the  presumption 
of  payment  would  follow.  Perhaps  the  same  result  might 
follow  if  the  mortgagee  were  not  in  possession.     But  if  the 

16  See  Parker  v.  Dacres,  130  U.  S.  20  Way  v.  Mullett,  143  Mass.  49. 

43,  32  L.  ed.  848,  9  Sup.  Ct.  Rep.  21  Rev.  Codes  1905,  §  6141. 

433.  ^^  North  Dakota  Horse  &  Cattle 

"  Under  Cal.  Civ.  Code,  §  2903.  Co.  v.  Serumgard,  17  N.  D.  466,  29 

18 //o//  V.  Arnott,  80  Cal.  348.  22  L.R.A.(N.S.)  508,  138  Am.  St.  Rep. 

Pac.  500.  717,  117  N.  W.  453. 

19  Under   Mass.   Pub.   St.   c.   181,  23  yj  Me.  270,  273. 
§  27. 


1536  MORTGAGE    FORECLOSURES.  [§    1139 

mortgagee  were  in  possession  for  the  same  length  of  time,  there 
would  be  a  presumption  of  foreclosure.  From  the  report  in 
this  case  it  appears  that  the  *  *  *  mortgagee  continued 
to  hold  and  occupy  as  before;  taking  the  rents  and  profits 
without  accounting  for  them  or  paying  rent,  or  being  called 
upon  to  do  either.  *  *  *  Thus,  for  twenty  years  after 
the  attempted  foreclosure,  the  premises  were  in  the  actual  pos- 
session of  one  of  the  mortgagors,  which  would  not  only  pre- 
vent the  completion  of  the  foreclosure,  but  raises  the  pre- 
sumption of  payment." 

§  1139.  After  foreclosure — Generally. — When  the  mort- 
gagor is  permitted  to  redeem  after  foreclosure,  it  will  be  only 
upon  the  full  payment  of  the  mortgage  debt,  interest  and 
costs;  and  not  upon  repayment  merely  of  the  amount  for 
which  the  premises  sold,  in  those  cases  where  they  bring 
less  than  the  full  amount  of  the  mortgage  debt.^^ 

The  redemption  law  in  force  at  the  time  of  the  rendition 
of  a  judgment  foreclosing  a  mortgage,  governs  in  respect  to 
the  time  within  which  the  redemption  may  be  made,  and  not 
the  law  in  force  at  the  time  of  the  attempted  redemption.^* 
But  the  existing  laws  with  reference  to  which  the  mortgagor 
and  mortgagee  must  be  assumed  to  have  contracted,  are  those 
only  which,  in  their  direct  or  necessary  legal  operation,  con- 
trolled or  afifected  the  obligation  of  their  contract,  and  do 
not  include  laws  changing  the  rate  of  interest  on  bids  to  be 
paid,  upon  redemption,  to  the  purchaser  at  foreclosure  sale.^^ 
It  has  been  said  that  a  state  statute  which  allows  the  mortgagor 
twelve  months  to  redeem  after  a  sale  on  foreclosure,  and  his 

2*//or»     V.      Indianapolis     Nat.  52  N.  Y.  579;  Collins  v.  Riggs.  81 

Bank,  125  Ind.  381,  25  N.  E.  558,  U.  S.  (14  Wall.)  491,  20  L.  ed.  723. 

9  L.R.A.  676,  21  Am.  St.  Rep.  231;  See  post,  §§  1173,  1191,  1192. 

Duke  V.  Beeson,  79  Ind.  24;  John-  ^^  Sheldon  v.  Pruessner,  52  Kan. 

son  V.  Harrison,  19  Iowa,  56;  Pow-  593,  35  Pac.  204. 

ers  V.  Golden  Lumber  Co.  43  Mich.  26  Connecticut  Mut.  L.  Ins.  Co.  v. 

468,  5  N.  W.  656;  Martin  v.  Frid-  Cushman,  108  U.   S.  51,  27  L.  ed. 

ley,  23  Minn.  13 ;  Raynor  v.  Selmes,  648, 


§    1140]  REDEMPTION,  1537 

judgment  creditor  three  months  after  that,  governs  to  that 
extent  the  mode  of  transferring  the  title,  and  confers  a  sub- 
stantial right,  and  thereby  becomes  a  rule  of  property.^'  That 
the  Statute  of  Limitations  applies  to  a  suit  to  redeem  is  well 
settled;  and  a  mortgagee  in  possession,  resisting  enforcement 
by  the  mortgagor  of  the  equity  of  redemption,  for  the  period 
of  limitation  will  bar  enforcement  by  the  mortgagor  of  his 
equity  of  redemption.^' 

§  1140.  Same — After  lapse  of  years. — It  is  thought  that 
persons  seeking  to  enforce  the  right,  after  the  lapse  of  many 
years  and  the  intervention  of  other  interests,  to  redeem  prop- 
erty notwithstanding  a  sale  under  the  foreclosure  of  prior 
mortgages,  must  have  substantial  merit  in  their  cause,  and 
come  before  the  court  with  clean  hands. ^^  The  time  within 
which  an  action  to  redeem  must,  as  a  general  rule,  be  brought, 
is,  in  analogy  to  the  statute  limiting  the  time  for  commencing 
an  action  to  foreclose,  for  the  statute  of  limitations  ^°  applies 
to  suits  to  redeem.^^  As  a  usual  thing  such  suits  cannot  be 
maintained  after  ten  years  from  the  date  when  the  right  of 
action  accrued,""  and  in  no  state  after  twenty  years  of  peace- 
able and  adverse  possession.^^  And  the  time  within  which  the 
mortgagor  may  bring  his  action  to  redeem  is  not  extended  by 
the  fact  that,  owing  to  the  mortgagor  being  out  of  the  state, 

^"^  Brine  v.  Hartford  Fire  Ins.  Co.  170,  65  N.  E.  650;  Gunter  v.  Smith, 

96  U.  S.  627,  24  L.  ed.  858.  113  Ga.  18,  38  S.  E.  374. 

28  Gordon  v.  Lewis,  88  Mo.  378.  ^2  Crawford  v.    Taylor,  42   Iowa, 

^^  Simmons  V.  Taylor,  38  Fed.  682.  260.     See  Munn  v.  Surges,  70  111. 

30  See  post,  §  1249.  604,    661;    Norton   v.   Murden,    117 

"See   Munn    v.    Surges,   70    III.  Ga.  72.  43  S.  E.  786;  Fitch  v.  Mil- 

604;  Crawford  v.  Taylor,  42  Iowa,  ler,  200  III.  170,  65  N.  E.  650.     See 

260;   Parsons  v.  Naggle,  23   Minn.  also  Cassem  v.  Henstis,  201  111.  208, 

328;  Gordon  v.  Lewis,  88  Mo.  378;  94  Am.  St.  Rep.  160.  66  N.  E.  283; 

Turpie   v.   Loive,    158   Ind.   314,  92  Gunter  v.  Smith,  113  Ga.  18,  38  S. 

Am.  St.  Rep.  310,  62  N.  E.  484.  E.  374. 

But  see  Fitch  v.  Miller,  200  111.  33  See  post.  §  1252. 
Mortg.  Vol.  II.— 97. 


1538 


MORTGAGE    FORECLOSURES. 


[§  1141 


the  mortgagee  may  bring  his  action  to  foreclose  after  the  ex- 
piration  of  ten  years. 

§  1141.  Same — Computation  of  time. — In  redemption 
of  mortgages  time  is  computed  by  excluding  the  first  day  upon 
which  the  mortgage  falls  due  and  including  the  last  day  of 
the  time  of  redemption.^^  So  where  mortgaged  premises  have 
been  sold  at  foreclosure  sale  on  a  certain  day,  the  redemption- 
er  has  until  the  last  moment  of  the  same  day  of  the  succeeding 
year  (or  other  limited  time)  in  which  to  redeem.^^     In  those 


^*  Parsons  v.  N aggie,  23  Minn. 
328. 

35  Owen  V.  Slatter,  26  Ala.  547,  62 
Am.  Dec.  745;  Blackman  v.  N ear- 
ing, 43  Conn.  53;  Weeks  v.  Hull, 
19  Conn.  376,  50  Am.  Dec.  249; 
Avery  v.  Stewart,  2  Conn.  69,  7  Am. 
Dec.  240;  Teucher  v.  Hiatt,  23 
Iowa,  527,  92  Am.  Dec.  440;  Smith 
V.  Cassity,  9  B.  Mon.  (Ky.)  192,  48 
Am.  Dec.  420;  Beamis  v.  Leonard, 
118  Mass.  508,  19  Am.  Rep.  470; 
Warren  v.  Slade,  23  Mich.  6,  9  Am. 
Rep.  70;  Ex  parte  Dean,  2  Cow. 
(N.  Y.)  605,  14  Am.  Dec.  521; 
Cromlin  v.  Brink,  29  Pa.  St.  525 ; 
Barber  v.  Chandler,  17  Pa.  St.  48, 
55  Am.  Dec.  533;  Jones  v.  Planters 
Bank,  5  Humph.  (Tenn.)  619,  42 
Am.  Dec.  471. 

In  the  case  of  Teucher  v.  Britt, 
supra,  the  court  say  that  at  common 
law,  the  rule  as  to  computation  of 
time  was  not  uniform.  In  certain 
cases  the  day  of  the  act  done,  or 
happening  of  the  event,  was  in- 
cluded; as,  where  a  sheriff  was  not 
to  be  called  upon  to  return  process 
after  six  months  from  the  expira- 
tion of  his  office.  King  v.  Adderly, 
Doug.  (2d  ed.)  463.  In  computing 
time  from  an  act  of  bankruptcy ; 
in  the  limitation  of  actions  against 


the  hundred  upon  the  statute  of  hue 
and  cry;  to  prevent  a  descent  from 
barring  an  entry  (Co.  Lit.  255a), 
etc.  But  the  more  general  rule 
was  to  exclude  the  day,  although, 
each  case  was  made  to  depend  upon 
the  reason  of  the  thing,  according 
to  its  circumstances.  Teucher  v. 
Hiatt,  23  Iowa,  527,  92  Am.  Dec. 
440.  See  Pease  v.  Norton,  6  Me. 
(6  Greenl.)  233;  Windsor  v.  China, 
4  Me.  (4  Greenl.)  304;  Wheeler  v. 
Bent,  21  Mass.  (4  Pick.)  167;  Bige- 
low  V.  Wilson,  18  Mass.  (1  Pick.) 
485 ;  Portland  Bank  v.  Maine  Bank, 
11  Mass.  205;  Henry  v.  Jones,  8 
Mass.  453;  Rand  v.  Rand,  4  N.  H. 
267 ;  Priest  v.  Tarlton,  3  N.  H.  93 ; 
Ex  parte  Dean,  2  Cow.  (N.  Y.)  605, 
14  Am.  Dec.  521 ;  Snyder  v.  Warren, 
2  Cow.  (N.  Y.)  514,  14  Am.  Dec. 
519;  Gillispie  v.  White,  16  John. 
(N.  Y.)  117;  Hoffman  v.  Deul,  5 
John.  (N.  Y.)  232;  Simms  v. 
Hampton,  1  Surg.  &  R.   (Pa.)  411. 

In  South  Dakota  under  the  Comp. 
Laws,  property  sold  at  foreclosure 
sale  may  be  redeemed  within  one 
year  from  the  date  of  sale.  Tren- 
ery  v.  American  Mortgage  Co.  11 
S.  D.  506,  78  N.  W.  991. 

36  Teucher  v.  Hiatt,  23  Iowa,  527, 
92  Am.  Dec.  440. 


§    1141]  REDEMPTION.  1539 

cases  where  the  last  day  falls  on  Sunday,  it  is  thought  that  a 
redemption  on  the  following  Monday  will  be  in  time.^'  The 
reason  is  founded  in  public  policy,  and  the  maxim  dies  non 
juridicus  is  given  a  liberal  construction  and  effect,  so  as  to  em- 
brace in  it  that  which  may  be  deemed  within  its  purpose  and 
meaning.'^  It  is  now  well  established  that  the  observance  of 
the  Sabbath  day  is  such  a  right  which  may  be  enjoined  without 
molestation  by  transactions  of  a  secular  character.  Hence 
Sunday  cannot,  for  the  purpose  of  performing  a  contract,  be 
regarded  as  a  day  in  law,  and,  when  the  performance  of  a  con- 
tract is  due  on  Sunday,  performance  on  the  Monday  fol- 
lowing is  in  time.^^  Thus  it  has  been  held  that  Sunday  is  to 
be  deemed  a  dies  non  in  determining  a  creditor's  right  to  re- 
deem the  premises  sold  on  execution  from  a  prior  redeeming 
creditor  under  a  statute  requiring  him  to  redeem  within  twen- 
ty-four hours  after  the  former  redeems,  where  his  redemption 
must  be  made  at  the  sheriff's  office,  which  the  law  does  not  re- 

^"J  Styles  V.  Dickey,  134  N.  W.  702  Vechten  v.  Paddock,  12  John.    (N. 

(N.  D.)     See  Stibbins  v.  Anthony,  Y.)   178,  7  Am.  Dec.  303;  Salter  v. 

5    Cal.    348;    Avery    v.    Stewart,   2  Burt,   20   Wend.    (N.    Y.)    205,   32 

Conn.  69,  7  Am.  Dec.  240;  Baxley  rett  v.  Allen,  10  Ohio,  426;  Ed mund- 

V.  Bennett,  33  Ga.  146;  Shaw  v.  Wil-  son  v.   Wragg,  104  Pa.  St.  500,  49 

Hams,  87  Ind.  158,  44  Am.  Rep.  756,  Am.  Rep.  590;  Barnes  v.  Eddy,  12 

28  Alb.  L.  J.  68;  Ormsby  v.  Lowis-  R.  I.  25. 

ville,  79  Ky.   197,  20  Am.   L.   Reg.  38  Porter  v.  Pierce,  120  N.  Y.  217, 

269;  Cressey  v.  Parks,  75  Me.  387,  24  N.  E.  281,  7  L.R.A.  847;  Fiend 

46    Am.    Rep.    406;    Hammond    v.  v.    Park,    20    John.    (N.    Y.)     140; 

American  Mut.  L.  Ins.  Co.  76  Mass.  Van  Vechten  v.  Paddock,  12  John. 

(10  Gray)  306;  Thayer  v.  Felt,  21  (N.  Y.)  178,  7  Am.  Dec.  303. 
Mass.  (4  Pick.)  354;  Kuntz  v.  Tern-  ^^  Porter  v.  Pierce,  120  N.  Y.  217, 

pie,  48  Mo.  71;  Ansonio  Brass  &  24  N.  E.  281,  7  L.R.A.  847;  Avery 

Copper   Co.   v.   Connor,   103   N.   Y.  v.  Stewart,  2  Conn.  69,  7  Am.  Dec. 

509,  9  N.  E.  238;  Campbell  v.  Inter-  240;    Campbell   v.    International   L. 

national  L.  Assur.  Soc.  Co.  4  Bosw.  Assur.  Soc.  4  Bosw.   (N.  Y.)   299; 

(N.   Y.)    299;   Anonymous,  2   Hill  Howard   v.    Ives,    1    Hill    (N.    Y.) 

(N.   Y.)    375;   Howard   v.   Ives,    1  263;  Salter  v.  Burt,  20  Wend.    (N. 

Hill  (N.  Y.)  263;  Whipple  v.  Wil-  Y.)  205,  32  Am.  Dec.  530. 
Hams,  4  How.  (N.  Y.)  Pr.  28;  Van 


1540  MORTGAGE    FORECLOSURES.  [§    1142 

quire  to  be  kept  open  on  Sunday;  and  that  in  such  a  case  a 
redemption  made  on  the  following  Monday  will  be  sufficient.*" 

§  1142.  Same — By  junior  lienholder. — Junior  lienhold- 
ers  will  not,  in  the  absence  of  any  circumstance  calling  upon 
a  court  of  equity  to  exercise  its  discretion,  have  any  right  to 
redeem  after  the  lapse  of  the  period  fixed  by  statute.*^  The 
time  allowed  for  redemption,  where  not  fixed  by  statute,  is 
in  the  sound  discretion  of  the  court.*^  In  Iowa,  a  junior  judg- 
ment lienholder,  made  a  defendant  to  a  mortgage  foreclosure, 
has  no  right  to  redeem  after  nine  months  from  the  date  of  the 
sale;  but  if  he  does  redeem  after  that  time,  and  obtains  an  as- 
signment of  the  certificate,  and  offers,  of  record,  to  take  the 
land  for  the  full  amount  due,  such  transaction  entitles  him  to 
the  rights  and  title  of  the  holder  of  the  certificate.*^  It  has 
been  said  that  the  holder  of  a  junior  judgment  has  no  right 
to  redeem  from  a  sale  under  the  foreclosure  of  a  senior  mort- 
gage, after  the  statutory  time  for  redemption  has  expired, 
€ven  though  he  is  not  made  a  party  to  the  foreclosure,  if  his 
judgment  is  not  indexed  at  the  time  of  the  foreclosure,  unless 
the  plaintiff  in  foreclosure  has  actual  notice  of  the  judgment 
at  the  time  of  foreclosure ;  the  reason  for  this  is  the  fact  that 
third  persons  cannot  be  charged  with  constructive  notice  of  a 
judgment  unless  it  is  correctly  indexed.** 

In  those  cases  where  a  subsequent  incumbrancer,  having 
knowledge  of  all  the  facts  in  connection  with  the  foreclosure 
of  a  prior  mortgage,  declined  to  redeem  on  the  ground  that 
the  property  was  not  of  sufficient  value,  he  will  not,  six  years 

^^  Porter  v.  Pierce,  120  N.  Y.  217,  ^^  Bremer  v.  Calumet  &  C.  Canal 

24  N.  E.  281,  7  L.R.A.  847.  &  D.  Co.  127  111.  464,  18  N.  E.  321. 

*^  See  Lindsey  v.  Delano,  78  Iowa,  *3  Lindsey    v.    Delano,    78    Iowa, 

350,  43  N.  W.  218;  Hum  v.  Hill,  70  350,  43  N.  W.  218;  Hum  v.  Hill,  70 

Iowa,  38,  29   N.  W.  796;   Sterling  Iowa,  38,  29  N.  W.  796. 

Mfg.  Co.  V.  Early,  69  Iowa,  94,  28  '^'^  Sterling  Mfg.  Co.  v.  Early,  69 

N.  W.  458  Iowa,  94,  28  N.  W.  458. 


§    1145]  REDEMPTION.  1541 

thereafter,  be  allowed  to  redeem  from  a  bona  fide  purchaser 
who  has  made  improvements.*^ 

§  1143.  Same — Receipt  of  rents  and  profits  by  mort- 
gagee— Effect  on  right. — The  English  chancery  court,  in 
the  case  of  the  National  Permanent  Mutual  Benefit  Building 
Society  v.  Raper,*^  say  that  an  order  for  final  foreclosure 
of  a  mortgage  will  be  made  without  further  account  and 
fresh  period  of  redemption,  notwithstanding  the  receipt  by 
the  mortgagee  of  rents  after  default  has  been  made  in  pay- 
ment of  the  principal  and  interest  of  the  mortgage  on  the 
day  fixed  for  redemption,  but  before  the  affidavit  of  such 
default  is  sworn. 

§  1144.  Same — Fraud — Effect  on  redemption. — It  is  a 
well  established  principle  of  law,  which  we  have  heretofore  dis- 
cussed,*' that  fraud  vitiates  everything  into  which  it  enters. 
The  right  of  redemption  of  mortgaged  premises  restricted, 
by  statute,  to  a  particular  time  from  the  date  of  default,  or  of  a 
sale  under  mortgage  foreclosure  proceedings,  determines  the 
right,  for  the  law  in  force  at  the  rendition  of  the  judgment 
governs,**  except  in  those  cases  where  fraud  has  intervened^ 
renderinar  the  decree  and  sale  thereunder  voidable.*' 


'b 


§  1145.  Extension  of  time  to  redeem — By  agreement  of 
parties.— The  parties  to  a  mortgage  may,  by  special  agree- 
ment, fix  the  time  within  which  redemption  may  be  made, 
and  this  agreement  will  be  enforced  by  the  court,*"  within  the 

^^Lindsey   v.    Delano,   78    Iowa,  ^^  Collins  v.  Scott,   100  Cal.  446, 

350,  43  N.  W.  218.  34  Pac.  1082. 

46  1  Ch.  54.    (1892.)  ^0  Nichols  v.  Otto,  132  111.  91,  23 

«See  Index  tit.  "Fraud."  N.   E.  411;  Davis  v.  Drcsback,  81 

^^  Collins  V.  Scott,  100  Cal.  446,  111.  393;   Cox  v.  Ratcliff,  105   Ind. 

34  Pac.  1082;  Sheldon  v.  Priiessner,  374,  5  N.  E.  5 ;  Henkel  v.  Mix,  38 

52  Kan.  593,  35  Pac.  204.    See  ante,  La.  An.  271 ;  Clark  v.  Crosby.  101 

§  1139.  Mass.    184;    Allison   v.    Looms,    29 


1542 


MORTGAGE    FORECLOSURES. 


[§  1145 


time  designated  in  the  contract,*^  even  though  the  time  of  re- 
demption be  extended  beyond  the  time  hmited  by  statute,®^  in 
those  cases  where  the  agreement  for  extension  is  made  while 


N.  Y.  S.  R.  617,  9  N.  Y.  Supp.  33; 
Turpie  v.  Lowe,  158  Ind.  314,  92 
Am.  St.  Rep.  310,  62  N.  E.  484; 
Taggart  v.  Blair,  215  111.  339,  74  N. 
E.  372. 

In  Louisiana  it  is  held  that  where 
an  act  of  sale  of  land  concurs  with 
a  counter  letter  in  asserting  that  the 
transaction  is  a  sale,  and  the  letter 
stipulates  that  the  vendor  may  re- 
deem within  a  given  time,  he  will 
lose  the  right  forever,  if  it  be  not 
exercised  within  the  time  agreed 
on.    Henkel  v.  Mix,  38  La.  An.  271. 

What  amounts  to  an  extension  of 
time  in  which  to  redeem  is  some- 
times a  matter  of  construction  of 
the  terms  of  the  agreement.  See 
■woods  V.  McGraw,  127  Fed.  914,  63 
C.  C.  A.  556;  Sharpe  v.  Lees,  123 
Pac.  1071;  Potter  v.  Ft.  Madison 
Loan  &  Trust  Building  Ass'v.  133 
Iowa,  367,  110  N.  W.  616;  Ogden 
V.  Stevens,  241  111.  556,  132  Am.  St. 
Rep.  237,  89  N.  E.  741.  See  also 
Kenmare  Hard  Coal,  Brick  &  Tile 
Co.  V.  Riley,  20  N.  D.  182,  126  N. 
W.  241. 

In  the  case  of  Clark  v.  Crosby, 
101  Mass.  184,  an  agreement  by  a 
mortgagee,  made  three  years  after 
his  entry  to  foreclose,  to  quit-claim 
the  "mortgaged  real  estate"  to  a 
third  party  if  he  would  pay  before 
a  certain  day  an  amourl  which  was 
equal  to  what  was  due  on  the  mort- 
gage on  that  day,  less  the  amount 
of  rents  received  by  the  mortgagee 
between  the  date  of  such  agreement 
and  such  payment,  was  held  not  to 
be  an  extension  of  the  right  to  re- 


deem, though  procured  by  the 
mortgagor. 

In  Allison  v.  Loomis,  9  N.  Y. 
Supp.  33,  29  N.  Y.  S.  R.  617,  upon 
the  formation  of  a  corporation  the 
parties  agreed  that  one  should  bear 
half  the  loss  which  the  other  might 
sustain  if  in  the  event  the  enterprise 
proved  unprofitable,  and  should  also 
give  a  deed  of  lands  as  security  for 
such  loss  and  a  loan ;  and  upon 
the  latter  being  called  upon  to  make 
further  advances  a  new  unsigned 
contract  was  entered  into,  by  which 
the  former  resigned  as  treasurer  in 
favor  of  the  latter,  who  at  the  end 
of  five  years  was  to  have  full  pos- 
session of  the  real  estate  and  the 
former's  rights  therein  to  cease  in 
case  of  a  failure  to  tender  one-half 
of  the  loss  and  interest.  The  court 
held  the  second  contract  valid,  and 
gave  the  former  five  years  withm 
which  to  redeem,  notwithstanding 
an  abandonment  of  the  business  be- 
fore that  time. 

^^  Davis  V.  Dreshack,  81  111.  393. 
See  also  Williams  v.  Hoffman,  39 
Ind.  App.  315,  76  N.  E.  440;  Mann 
v.  Provident  Life  &  Trust  Co.  42 
Wash.  581,  85  Pac.  56. 

Time  is  computed  from  the  date 
of  the  instrument  and  not  from  de- 
livery. Johnson  v.  Prosperity  Loan 
&  Building  Ass'c.  94  111.  App.  260. 

^^  Davis  V.  Dresback,  81  111.  393; 
Oertel  v.  Pierce,  116  Minn.  266,  133 
N.  W.  797.  See  Williams  v.  Hoff- 
man,  39  Ind.  App.  315,  76  N.  E.  440. 
See  Kenmare  Hard  Coal,  Brick  & 
Tile  Co.  V.  Riley,  20  N.  D.  182,  126 
N.  W.  241. 


§    1145]  REDEMPTION.  1543 

the  right  to  redeem  exists,^^  provided  the  mortgaged  property 
is  ukimately,  and  within  a  reasonable  period,  to  be  restored 
to  the  mortgagor.^*  Where  made  after  default,  but  during 
the  period  allowed  by  statute  for  redemption,  the  contract 
will  be  valid,  and  not  being  within  the  statute  of  frauds,  need 
not  be  in  writing;  ^^  but  where  the  contract  is  entered  into 
after  the  period  allowed  by  statute  for  redemption  has  expired, 
the  court  will  not  enforce  it,  unless  the  agreement  is  based  on 
a  new  consideration.®^  In  those  cases  where  the  agreement  as 
to  the  time  of  the  redemption  is  entered  into  at  the  time  of 
making  the  loan,  and  inserted  in  the  mortgage  or  instrument 
securing  the  same,  it  is  not  necessary  that  the  mortgagee  sign 
the  mortgage  in  order  to  make  the  agreement  binding  upon 
him,"  for  the  reason  that  both  parties  are  not  required  to 
sign  a  deed  of  this  character,  in  order  that  its  stipulations  shall 
be  binding  on  them;  being  a  deed  pole,  on  acceptance  by  the 
grantee  it  becomes  the  mutual  act  of  both  parties  thereto,  and, 
for  that  reason,  binding  on  them ;  ^^  and  it  is  not  necessary  to 

^^  Nichols  V.  Otto,  132  111.  91,  23  93,  102,  41  Am.  Rep.  199;  Dickason 

N.  E.  411;  Cox  v.  Ratcliffe,  105  Ind.  v.  IVilliams,  129  Mass.  182,  37  Am. 

374,  5  N.  E.  5.  Rep.  316;  Fenton  v.  Lord,  128  Mass. 

"2    Jones    on    Mort.    (4th    ed.)  466;   Coolidge  v.  Smith,  129  Mass. 

«  1040.  554;   Bronson  v.   Coffin,   108  Mass. 

^^Cox  V.  Ratcliffe,  105  Ind.  374,  175,  186,  11  Am.  Rep.  335;  Maine  v. 

5  N.  E.  5 ;  Taggart  v.  Blair,  215  111.  Cunston,  98  Mass.  317,  320;  McCabe 

339,  74  N.  E.  372;  Bristol  v.  Her-  v.  Swap,  93  Mass.   (14  Allen)    188, 

shey,  7  Cal.  App.  738,  95  Pac.  1040.  193;  Jewet  v.  Draper,  88  Mass.   (6 

See  Turpie  v.  Lowe,   158  Ind.  314,  Alien)    434;   Bramer  v.  Dowse,  66 

92  Am.  St.  Rep.  310,  62  N.  E.  484;  Mass.     (12    Cush.)    277;    Pike    v. 

Ogden  v.  Stevens,  241    III.   556,  89  Brown,   61    Mass.    (7   Cush.)    133; 

N.   E.   741 ;    Williams  v.   Hoffman,  Bozven    v.     Comer,    60    Mass.     (6 

39  Ind.  App.  315,  76  N.  E.  440.  Cush.)   132,  136;  Newell  v.  Hill,  43 

^^Nicholls  w.  Otto,  U2\\\.9\,2Z  Mass.     (2    Met.)     181;    Nugent    v. 

N.  E.  411;   Chase  v.  McLellan,  49  Riley,  42   Mass.    (1    Met.)    117,  35 

Me.  375 ;  McNew  v.  Booth,  42  Mo.  Am.  Dec.  355 ;  Guild  v.  Leonard.  35 

189;  Smalley  V.  Hickok.  12  Vt.  153.  Mass.     (18    Pick.)    511;    Minor    v. 

^T  St  owe  V.  Merrill,  77  Me.  550.  \  Lelaud.   35   Mass.    (18   Pick.)    266; 

Atl.  684.  Felch  v.  Taylor.  30  Mass.  (13  Pick.) 

68  Stowe  V.  Merrill,  77  Me.  550,  1  133 ;  Phelps  v.  Townsend,  25  Mass. 

Atl.  684;  Locke  v.  Homer,  131  Mass.  (8  Pick.)  392;  Swascy  v.  Little,  24 


1544 


MORTGAGE   FORECLOSURES. 


[§  1145 


Mass.  (7  Pick.)  296;  Fletcher  v. 
McFarlane,  12  Mass.  43,  47;  Good- 
win V.  Gilbert,  9  Mass.  510;  i?aw- 
jon  V.  Copeland,  2  Sandf.  Ch.  (N. 
Y.)  257;  Rogers  v.  Eagle  Ins.  Co. 
9  Wend.  (N.  Y.)  611,  618. 

In  the  case  of  Locke  v.  Homer, 
131  Mass.  93,  102,  41  Am.  Rep. 
199,  the  court  say:  "By  the  law 
of  this  commonwealth,  affirmed  by 
many  decisions,  the  grantee,  by  the 
acceptance  of  the  deed,  becomes 
liable  to  perform,  according  to  its 
terms,  any  promise  or  undertaking 
therein  expressed  to  be  made  in  his 
behalf,  although  not  having  him- 
self signed  the  deed,  he  must,  while 
the  old  forms  of  action  were  re- 
tained, have  been  sued  in  assumpsit 
and  not  in  covenant."  Citing : 
Coolidge  v.  Smith,  129  Mass.  554; 
Dickason  V.  Williams,  129  Mass. 
182,  184,  Z7  Am.  Rep.  316;  Fenton 
V.  Lord,  128  Mass.  466;  Maine  v. 
Cumston,  98  Mass.  317,  319;  Mc- 
Cabe  V.  Swap,  96  Mass.  (14  Allen) 
188,  193 ;  Jewett  v.  Draper,  88  Mass. 
(6  Allen)  434;  Branian  v.  Dowse, 
66  Mass.  (12  Cush.)  227;  Pike  v. 
Brown,  61  Mass.  (7  Cush.)  133; 
Newell  V.  Hill,  43  Mass.  (2  Met.) 
180;  Guild  v.  Leonard,  35  Mass.  (18 
Pick.)  511;  Phelps  v.  Townsend,  25 
Mass.  (8  Pick.)  392.  394;  Fletcher 
V.  McFarlane,  12  Mass.  43,  47; 
Goodwin  v.  Gilbert,  9  Mass.  510. 
See  also  Rogers  v.  Eagle  Fire  Ins. 
Co.  9  Wend.  (N.  Y.)  611;  Rawson 
V.  Copeland,  2  Sandf.  Ch.  (N.  Y.) 
251. 

In  Tirrill  v.  Gage,  86  Mass.  (4 
Allen)  245,  256,  the  supreme  ju- 
dicial court  of  Massachusetts  say : 
"And  hence  it  has  become  an  es- 
tablished rule,  applicable  to  all 
transactions,  that  he  who  accepts 
from    another    anything    of    value, 


whether  it  be  real  or  personal  es- 
tate, which  he  knows  to  be  subject 
to  a  duty  or  charge  for  which  he  is 
expected  to  pay,  is  presumed  there- 
by to  have  impliedly  contracted  to 
take  the  duty  or  charge  upon  him- 
self." Citing:  Boston  &  Maine 
Railroad  Company  v.  Whitcher,  83 
Mass.  (1  Allen)  497;  Blanchard  v. 
Page,  74  Mass.  (8  Gray)  281; 
Newell  V.  Hill,  43  Mass.  (2  Met.) 
180;  Sheldon  v.  Purple,  32  Mass. 
(15  Pick.)  528;  Felch  v.  Taylor,  30 
Mass.  (13  Pick.)  133;  Swasey  v. 
Little,  24  Mass.  (7  Pick.)  296; 
Goodwin  v.  Gilbert,  9  Mass.  510. 

In  the  case  of  Rogers  v.  Eagle 
Fire  Ins.  Co.  9  Wend.  (N.  Y.)  611, 
618,  the  court  say :  "Whoever  takes 
an  estate  under  a  deed,  ought,  in 
reason  and  equity,  be  obliged  to 
take  it  on  the  terms  expressed  in 
the  deed.  It  is  said  by  the  court, 
in  Goodwin  v.  Gilbert  (99  Mass. 
510),  that  it  has  long  been  settled 
that  an  action  allows  for  deed  re- 
served in  a  deed  pole,  meaning,  no 
doubt,  in  those  cases  where  the 
same  was  accepted  by  the  grantee." 

But  in  the  case  of  Parish  v.  Whit- 
ney, 69  Mass.  (3  Gray)  516,  it  was 
held  that  a  clause  in  a  deed  pole, 
even  if  purporting  to  bind  the 
grantee's  heirs  and  assigns,  was  not 
a  covenant  in  any  sense,  and  did 
not  create  an  incumbrance  upon  the 
land.  The  supreme  judicial  court 
of  Massachusetts,  in  the  case  of 
Branson  v.  Coffin,  108  Mass.  175, 
186,  11  Am.  Rep.  335,  say,  regarding 
these  decisions :  "If  that  decision 
can  be  supported,  it  must  be  as 
falling  within  the  rules  that  no  ease- 
ment in  or  right  affecting  real  es- 
tate can  be  created  by  contract  of 
the  party,  except  by  deed,  and  that 
an    agreement    not    sealed    by    the 


§    1146]  REDEMPTION.  1545 

insert  such  agreement  in  the  notice  of  foreclosure  of  such 
mortgage.*^  An  extension  of  time,  however,  is  not  binding 
upon  an  innocent  purchaser.^^ 

§  1146.  Same — By  court  on  statutory  foreclosure. — Al- 
though the  parties  to  a  mortgage  may,  by  proper  agreement, 
either  before  or  after  foreclosure,  arrange  for  the  extension 
of  the  time  wherein  redemption  may  be  made,  yet  a  court  of 
equity,  on  a  statutory  foreclosure,  has  no  power  to  extend 
the  time  allowed  in  which  to  redeem,  even  in  those  cases  where 
redemption  within  that  time  has  been  prevented  by  inevitable 
accident,  misfortune  or  unforeseen  calamity;"  for,  although 
courts  of  equity  have  large  powers  for  relief  against  the  con- 
sequences of  inevitable  accident  in  private  dealings,  and  may 
doubtless  control  their  own  process  and  decrees  to  that  end, 
they  have  no  such  power  to  relieve  against  statutory  foreclo- 
sures ;  ®^  and  for  that  reason  are  powerless  by  their  decrees  to 
extend  the  time  for  a  redemption  on  a  statutory  foreclosure, 
where  redemption  is  not  made  within  the  time  provided,  no 
matter  what  the  cause  of  such  failure  may  be.^^    Thus  it  has 

party  who  is  to  perform  it  cannot  and  created  an  incumbrance  there- 
create  a  covenant  to  run  with  the  on.  Kellogg  v.  Robinson,  6  Vt. 
land.  Dyer  v.  Hanford,  50  Mass.  276,  27  Am.  Dec.  550;  Burbank  v. 
(9  Met.)  395,  43  Am.  Dec.  399;  Pillsbury,  48  N.  H.  475,  97  Am. 
Goddard   v.   Dakin,   51    Mass.    (10  Dec.  633. 

Met.)    94;   Morse  v.   Copeland,  68  ^^  Stowe  \.  Merrill,  77  M.t.  SSQ,  1 

Mass.  (2  Gray)  302;  Maine  v.  Cum-  Atl.  684. 

Stan,  98  Mass.  317,  320;   Wright  v.  ^^  Matney     v.    Williams,  28   Ky. 

Wright,  21  Conn.  329,  342;  Standen  Law  Rep.  494,  89  S.  W.  678.     See 

V.  Christmas,  10  Q.   B.   125;  Bick-  ^'^°    Swanson    v.    Reahzatwn     & 

ford  V.  Parson,  5   C.   B.  920.     On  ?'t"'"''.onZ"ZTr  '/J'''^'"^' 

\        ,       .       ,    .,  ,       ,         ,    , ,  .  70  Mmn.  380,  73  N.  W.  165. 

the  other  hand,  it  has  been  held  m  „,  ^                        .,           ,,    ,,.  , 

,    '         ^^          ,.        ,  ^^  Cameron   v.   Adams,   31    Mich. 

Vermont  and  New  Hampshire  that  426;   Dodge   v.   Brewer.    31    Mich, 

such  a  promise  by  the  grantee  is  a  227;  Hoover  v.  Johnson,  47  Minn, 

deed   pole,    for   the   benefit   of   the  434  ^q  j^j   -^y  475 

adjoining  land  of  the  grantor,  who  62  Cameron   v.    Adams,   31    Midi, 

retained    no    other    interest    in    the  426. 

land  granted,   was   equivalent  to  a  63  Cameron   v.    Adams,   31    Mich, 

covenant    running    with    the    land,  426. 


1546  MORTGAGE  FORECLOSURES.  [§    1147 

been  said  that  the  time  for  redemption  from  a  valid  statutory 
foreclosure  of  a  mortgage  cannot  be  extended  until  the  de- 
termination of  a  suit  by  a  second  mortgagee  for  an  account- 
ing by  the  first  mortgagee  for  rents  and  profits  received 
pending  the  time  of  redemption,  but  the  amount  due  must  be 
tendered  or  paid  within  the  time  fixed  by  the  statute,  or  stipu- 
lated by  the  parties.^* 

§  1147.  Same — By  court  of  equity,  when. — The  gener- 
al rule  is  that  a  decree  of  foreclosure  regularly  enrolled  can- 
not be  altered  except  by  a  bill  of  review;^*  but  it  is  thought 
that  a  decree  by  default  may  be  opened  to  let  in  a  defense 
on  the  merits,  of  which  a  party  has  been  deprived  by  the 
negligence  of  counsel,^^  or  if  there  is  anything  inequitable  in 
the  decree  or  its  results,  when  the  time  will  be  extended  within 
which  to  redeem.^'  Thus  it  is  said  in  the  case  of  Millspau 
V.  McBride,®^  that  a  decree  of  foreclosure  by  default  may  be 
opened  even  after  enrollment  to  let  in  a  defense  that  a  prior 
mortgage,  alleged  in  the  bill  to  have  been  paid  by  the  de- 
fendant, was  in  fact  purchased  by  him,  and  is  entitled  to 
priority  of  payment,  where  such  defense  was  prevented  by 

^^  Hoover  v.   Johnson,  A7   Minn.  Paige  Ch.  (N.  Y.)  509,  34  Am.  Dec. 

434,  SO  N.  W.  475.  360;  Hazard  v.  Durant,  12  R.  I.  99; 

^^Lillie  V.  Shaiv,  59  111.  77.  Erwin  v.  Vint,  6  Mumf.  (Va.)  267; 

^^  Carter  V.  Torrance,  11  Ga.  655;  Williams  v.  Thompson,  2  Bro.  Ch. 

Herbert  v.  Rowles,    38    Md.    279;  280. 

Thompson  v.  Golding,  87  Mass.   (5  ^^  Seymour    v.    Davis,    35    Conn. 

Allen)    82;    Day   v.   Allaire.  31    N.  271;    Bridgeport   Savings   Bank    v. 

J.  Eq.    (4  Stew.)   215;    Embcry    v.  Eldridge,  28  Conn.  566,  7Z  Am.  Dec. 

Bergaminne,  24  N.  J.  Eq.   (9  C.  E.  688.      See    Ogden   v.    Stevens,   241 

Gr.)  229;  Brinkerhoff  v.    Franklin,  111.  556,   132  Am.  St.  Rep.  237,  89 

21  N.  J.  Eq.  (1  Zab.)  334;  Williams  N.  E.  741;  Benson  v.  Bunting,  127 

V.  Sykes,  13  N.  J.  Eq.  (2  Beas.)  182 ;  Cal.  532,  78  Am.  St.  Rep.  81,  59  Pac. 

Miller  V.  Riisforth,  4  N.  J.  Eq.    (3  991;  Stephenson  v.  Kilpatrick,   166 

H.  W.  Gr.)  174;  Nash  v.  Wetmore.  Mo.  262,  65   S.  W.   773.     See  also 

32,  Barb.  (N.  Y.)  159;  Curtis  v.  Bal-  Collins  v.  Gregg,  109  Iowa,  506,  80 

laugh,  4   Edw.   Ch.    (N.  Y.)    639;  N.  W.  562. 

Trip  V.    Vincent,  8  Paige  Ch.    (N.  68  7    Paige   Ch.    (N.   Y.)    509,  34 

Y.)    180;  Millspau    v.    McBride,    7  Am.  Dec.  360. 


§     1149]  REDEMPTION.  1547 

the  negligence  or  mistake  of  the  defendant's  solicitor;  and 
this  may  be  done  even  after  the  sale  has  been  made  under 
the  decree,  where  the  complainant  is  the  purchaser  and  the 
property  has  not  been  resold  to  a  bona  fide  purchaser  with- 
out notice.  In  this  case  the  court  say  that  evidence  is  ad- 
missible, and  not  open  to  the  objection  that  it  contradicts  the 
record,  in  case  of  a  bill  to  obtain  an  extension  of  time  in 
which  to  redeem  a  mortgage,  but  not  taking  notice  of  a  prev- 
ious decree  of  foreclosure;  where  defendants  set  up  such  de- 
cree and  aver  that  it  was  rendered  upon  legal  notice  to  plain- 
tiffs, and  with  their  knowledge  and  acquiescence,  plaintiffs 
may  offer  evidence  to  negative  these  allegations,  and  to  show 
that  there  was  no  legal  notice,  nor  actual  knowledge  of  the 
suit. 

§  1148.  Same — Disability  of  infancy,  imprisonment  or 
insanity. — In  case  of  infancy,  insanity  or  imprisonment, 
the  New  York  Code  ®^  provides  that  "the  time  of  such  a 
disability  is  not  a  part  of  the  time  limited"  for  commencing 
an  action  to  redeem ;  "except  that  the  time  so  limited  can- 
not be  extended  more  than  five  years  by  any  such  disabil- 
ity, except  infancy;  or  in  any  case,  more  than  one  year 
after  the  disability  ceases."  "* 

§  1149.  Where  mortgagee  purchases  at  foreclosure 
sale. — The  purchase  by  a  mortgage  at  his  own  sale,  and 
the  effect  upon  the  rights  and  liabilities  of  the  parties,  has 
been  sufficiently  discussed  elsewhere ;  '^  it  remains  but  to  call 
attention  to  the  effect  of  such  purchase  upon  the  right  of  re- 
demption. It  is  held  in  some  states  that  where  the  mortgagee 
purchases  at  his  own  sale  under  a  power  contained  in  the 
mortgage,  the  mortgagor  or  his  grantee,  has  the  optional  right 
to  affirm  or  disaffirm  the  same  within  a  reasonable  time  and 

69  Code  Civ.  Proc.  §  396.  'i  See  ante,  §  610. 

"^^  Messinger  v.  Foster,   115   App. 
Div.  689,  101  N.  Y.  Supp.  387. 


1548  MORTGAGE    FORECLOSURES.  [§    1149 

maintain  a  bill  to  redeem ;  '*  and  in  the  absence  of  special  cir- 
cumstances controlling  two  years  is  held  to  be  a  reasonable 
time.'^  The  supreme  court  of  Michigan,  in  the  case  of  Dodge 
V.  Breme/*  say  that  where  a  mortgage  has  been  foreclosed 
by  advertisement  and  the  premises  bid  in  by  the  mortgagee, 
but,  before  the  redemption  ran  out,  an  arrangement  was  made 
between  the  mortgagee-purchaser  and  the  mortgagor  to  extend 
the  time,  and  payments  have  been  made  and  accepted  on  the 
strength  of  the  agreement,  the  foreclosure  sale  and  deed  are 
thereby  superseded  and  rendered  abortive. 

72  Thomas  v.  Jones,  84  Ala.  302,  4  ^3  Ezzell  v.  Watson,  83  Ala.  120, 

So.  270;  E^sell  v.  Watson,  83  Ala.      3  So.  309. 
120,  3  So.  309;  Elrod  v.  Smith,  130  7*.31  Mich.  227. 

Ala.  212,  30  So.  420.  See  Messinger 
V.  Foster,  115  App.  Div.  689,  101 
N.  Y.  Supp.  387. 


CHAPTER  XLI. 

REDEMPTION— WHEN   MAY  BE  MADE. 

§  1150.  In  general. 

§  1151.  When  allowed — Omission  of  covenant  to  repay  no  bar  to  right 

§  1152.  Same — On  payment  of  mortgage  debt. 

§  1153.  Same— By  grantee. 

§  1154.  Same — Interest,   etc.,   received,   as   ground   for. 

§  1155.  Same — Fraud   and   misrepresentation   as   ground   for. 

§  1156.  Same — Unforeseen  event  as  ground   for. 

§  1157.  Same — Breach  of  faith  as  ground  for. 

§  1158.  Same — After  sale  to  mortgagee. 

§  1159.  Same — Where  interested  person  not  party  to  foreclosure. 

§  1160.  Same — Where  mortgagee  takes  possession  on  default. 

§  1161.  Same — Costs  on. 

§  1162.  When  not   allowed — Generally. 

§  1163.  Same — In  case  of  action  in  another  court. 

§  1164.  Same — In  case  of  appeal,  when. 

§  1165.  Same — In  case  of  fraud,  when. 

§  1166.  Same — In  case  of  owner  of  part  of  mortgaged  premised 

§  1167.  Same — In  case  of  parol  agreement. 

§  1168.  Same — In  case  of  railroads. 

§  1169.  Same — In  case  of  sale  of  mortgaged  premises. 

§  1170.  Same — In  case  of  trust. 

§  1150.  In  general. — While  it  is  true,  as  we  have  already 
seen,  that  the  right  of  redemption  is  reciprocal  with  that  of 
foreclosure,'''^  yet  where  that  right  is  lost  by  laches  in  failing 
to  redeem  within  the  time  specified,'^  or  the  running  of  the 

'5  See  ante,  §  1028.  Mortgagor  has  a  right,  after  con- 
's ilfcAT^e.y  V.  Swaney,  50  Mo.  dition  broken,  and  at  any  time  be- 
388;  Chapin  v.  Wright,  41  N.  J.  Eq.  fore  his  equity  is  lost  by  laches,  to 
(14  Stew.)  438,  5  Atl.  574;  Elmcn-  redeem  the  land  which  he  has  con- 
dor/ v.  Taylor,  23  U.  S.  (10  veyed  in  pledge,  by  paying  the 
Wheat.)  152,  157,  6  L.  ed.  289,  291;  mortgage  debt.  This  right,  how- 
Cholmondeley  v.  Clinton,  2  Jac.  &  ever,  is  a  pure  equity,  cognizable 
W.  1,  on  appeal.  Id.  189.  alone  by  courts  of  equity.     Chapin 

1549 


1550  MORTGAGE    FORECLOSURES.  [§    1150 

Statute  of  limitations,"  it  cannot  be  revived  by  a  tender  of  the 
amount  of  the  mortgage'*  and  interest  and  a  demand  for 
possession  of  the  premises.'^  And  where  there  is  a  merger 
of  the  equity  of  redemption  in  the  legal  estate,  the  right  of  re- 
demption is  extinguished;  but  whether  a  merger  takes  place 
where  the  two  estates  meet  in  one  person  depends  upon  the 
intention  of  that  person,  and  the  estates  are  not  merged  if  he 
does  not  so  intend.*"  Whether  redemption  can  be  made  by  a 
part  owner,*^  or  a  junior  mortgagee  of  a  part  of  the  premises,*^ 
is  sufficiently  discussed  in  a  former  chapter,  and  requires 
nothing  further  than  a  reference  at  this  time. 

It  is  said  in  Debney  v.  Green,®^  that  by  obtaining  a  judg- 
ment at  law  for  his  debt,  and  purchasing  the  mortgaged 
property  under  execution,  a  mortgagee  does  not  in  general 
deprive  the  mortgagor  of  the  right  of  redemption.  But  if 
such  judgment  and  execution  are  upon  an  attachment  against 
the  mortgagor,  as  an  absconding  debtor  attempting  to  defraud 
the  mortgagee  of  his  security,  by  removing  the  property  out 
of  the  state,  he  shall  not  be  permitted  to  redeem,  under  the 
influence  of  the  maxim  "that  he  who  hath  done  iniquity  shall 
not  have  equity.''  And  it  is  said  that  in  those  cases  where 
the  decree  upon  foreclosure  of  a  mortgage  cuts  off  all  right 
of  redemption,  an  action  to  reverse  so  much  of  the  decree  as 
forecloses  the  statutory  right  to  redeem  cannot  be  maintained 

V.  Wright,  41  N.  J.  Eq.  (14  Stew.)  man,  42  N.  H.  326,  80  Am.  Dec.  111. 

438,  5  Atl.  574.  See  also  post,  chap.  xlvi. 

The  Missouri  supreme  court,   in  "^^  See  post,  §  1177. 

the  case  of  McNees  v.  Swaney,  50  ''^  Miner    v.    Beekman,    11    Abb. 

Mo.  388,  held  that  the  neglect  of  a  (N.  Y.)  Pr.  N.  S.  147,  42  How.  (N. 

mortgagor  to  redeem  his  property  Y.)    Pr.  33. 

within  the  time  specified,  under  the  ^^  Knowles    v.    Lawton,    13    Ga. 

circumstances  did  not  work  a  for-  476,  63  Am.  Dec.  290. 

feiture  of  his  rights.  81  ggg  ^tite,  §  1102. 

''T  McClagg    v.    Hancock,    34    III.  82  See  ante,  §   1105. 

476,  85  Am.  Dec.  327,  42  111.   153;  834  Hen.  &  M.  (Va.)  101,  4  Am. 

See  Ford  v.   Wilson,  35  Miss.  490,  Dec.  503. 
72  Am.  Dec.  137;  Webber  v.  Chap- 


§     1151]  REDEMPTION.  1551 

after  the  time  to  redeem  has  passed,  in  those  cases  where  the 
complainant  has  made  no  offer  to  redeem. ^^ 

In  the  case  of  Anson  v.  Anson,^^  the  court  held  that  a  pur- 
chaser under  proceedings  to  foreclose  a  senior  mortgage,  to 
which  a  junior  mortgagee  is  not  made  a  party,  cannot,  by 
purchasing  the  mortgaged  premises  for  taxes,  thereby  acquire 
rights  which  would  bar  the  junior  mortgagee  from  redeeming 
upon  the  payment  of  the  proper  amount  due.*®  And  in  Moore 
V.  Andres,*'  it  is  said  that  the  equity  of  redemption  acquired 
from  the  mortgagor  by  intermediate  purchasers  or  incum- 
brancers is  not  barred  by  a  purchase  of  the  mortgaged  prem- 
ises made  by  the  assignee  of  the  note  given  for  the  purchase 
money,  and  who  is  plaintiff  in  execution  under  a  judgment  at 
law  against  vendee.  A  purchase  by  a  stranger  would  have  the 
same  legal  effect. 

§  1151.  When  allowed — Omission  of  covenant  to  repay 
no  bar  to  right. — The  right  to  redeem  land  sold  at  judicial 
sale  on  mortgage  foreclosure  is  not  impaired  by  the  want  of  a 
covenant  in  the  mortgage  for  the  repayment  of  the  money  se- 
cured.** A  sale  under  a  power  in  a  mortgage  may  cut  off 
the  right  to  redeem,*^  and  for  this  reason  it  may  become  im- 
portant to  determine  whether  a  given  sale  is  a  sale  under  a 
power  contained  in  a  mortgage  from  which  there  can  be  no 
redemption,  or  a  judicial  sale,  from  which  there  may  be  a 
redemption.  In  the  case  of  Chew  v.  Hyman,^°  A  sold  his  land 
to  B,  subject  to  a  trust  deed  previously  made  containing  a 
power  of  sale.  B  devised  the  land  to  his  children  upon  their 
coming  of  age,  and  gave  to  his  executor  the  power  to  sell  it 

^^Burley  v.  Flint,  105  U.  S.  247,  ^^  Critchen  v.  Walker,    1    Murph. 

26  L.  ed.  986.  (N.   C.)    L.  488,  4  Am.  Dec.   576; 

85  20  Iowa,  55,  89  Am.  Dec.  514.  King  v.  King,  3  Pr.  Wm.  358,  also 

86  To  the  same  effect  is  Wills  v.  1  Pr.  Wm.  271,  291. 
Turkey,  22  Cal.  373,  83  Am.  Dec.  89  See  ante,  §  1052. 
74.  90  10  Biss.  C.  C.  240. 

87  14  Ala.  628,  60  Am.  Dec.  551. 


1552  MORTGAGE    FORECLOSURES.  [§    1152 

for  their  maintenance,  in  such  manner  and  upon  such  terms 
as  to  him  should  seem  best.  The  holder  of  the  bond  filed  a 
bill  to  foreclose,  making  the  executors  and  the  trustee  parties 
defendant,  alleging  that  the  latter  were  unwilling  to  execute  the 
trust  unless  under  an  order  of  court.  The  court  ordered  a  sale, 
and  this  sale  was  held  to  be  a  judicial  sale,  and  not  a  sale  un- 
der the  power  alone;  that  the  children  of  B  were  necessary 
parties,  and  that  they  not  having  been  made  parties,  were  en- 
titled to  redeem. 

§  1152.  Same — On  payment  of  mortgage  debt. — The 

payment  of  the  mortgage  debt  extinguished  the  vitality  of 
the  lien  and  the  property  reverts  to  the  mortgagor  or  those 
claiming  under  him.  Consequently  a  deed  of  trust  expressly 
providing  that  it  shall  be  void  and  the  property  therein  con- 
veyed released  upon  payment  by  the  grantor  of  the  note  se- 
cured thereby  becomes  void  and  the  property  revests  in  tlie 
grantor  upon  such  payment;  and  it  cannot  be  made  a  new 
security  for  a  different  purpose  by  an  assignment  thereof  by  the 
grantee  to  a  third  person  upon  the  latter's  subsequently  mak- 
ing a  loan  to  the  grantor.^^  And  it  is  said  that  the  assignment 
of  a  lease  constituting  the  defeasance  of  a  deed  intended  as 
a  mortgage,  contrary  to  the  terms  of  the  lease,  will  not  operate 
as  a  forfeiture  of  the  right  to  redeem,  where  the  lease  provides 
for  a  conveyance  to  the  lessee  or  his  assigns  upon  payment  of 
the  amount  of  the  mortgage.^^ 

All  the  interest  of  a  mortgage  being  extinguished  by  pay- 
ment, it  follows  that  the  grantee  in  a  deed  given  him  as 
security  for  the  purchase  money  advanced  by  him  to  the 
purchaser  cannot  refuse,  upon  repayment  of  the  money,  to 
reconvey  along  with  the  land  a  water  right  which  constituted 
the  principal  inducement  for  the  purchase  and  was  intended 
to  be  conveyed,  on  the  ground  that  it  was  not  expressly  in- 

^^  Bailey  v.  Rockafellow,  57  Ark.  ^^  Shields  v.  Russell,  66  Hun  (N. 

216,  21  S.  W.  227.  Y.)   226,  20  N.  Y.  Supp.  909. 


§    1154]  REDEMPTION.  1553 

eluded  in  the  original  contract  of  purchase  and  was  put  into 
the  deed  at  his  suggestion.^^ 

§  1153.  Same — By  grantee. — The  right  of  redemption 
attaches  to  the  mortgagor  and  those  claiming  under  him  ;  ^* 
hence  it  is  said  that  a  certificate  of  redemption  issued  in  the 
name  of  the  grantor  to  a  grantee  of  lands  subject  to  a  mort- 
gage under  which  they  were  sold,  enures  to  the  grantee's 
use  and  benefit  in  those  cases  where  his  offer  to  redeem  in  his 
own  name,  as  he  had  a  legal  right  to  do,  was  refused  by  the 
sheriff  under  the  direction  of  the  mortgagees,  who  became 
the  purchasers  at  the  foreclosure  sale.®* 

§  1154.  Same,  interest,  etc.,  received,  as  ground  for. — 

As  long  as  the  relation  of  mortgagor  and  mortgagee  remain, 
and  is  recognized,  the  right  to  redeem  attaches.^®  Anything 
that  goes  to  establish  that  this  relation  is  recognized  may  be 
shown  in  support  of  the  claim  to  the  right  to  redeem.  Thus 
it  has  been  said  that  continuing  to  receive  interest  on  a  mort- 
gage after  foreclosure,  and  to  treat  the  mortgage  as  still  out- 
standing, keeps  the  mortgagor's  right  of  redemption  alive.®' 
In  the  case  of  Horton  v.  Moffit,®'  A  and  B  were  tenants 
in  common  of  the  same  premises,  A  owning  two  twenty- 
fifths  and  B  twenty-three  twenty-fifths,  which  had  been  sold 
under  foreclosure.  Afterwards,  and  before  the  expiration  of 
the  time  for  redemption,  the  certificate  of  sale  of  the  premises 
was  assigned  to  C,  who  also  became  by  purchase  the  owner 
of  the  interest  of  A.  B,  who  continued  in  possession  of  the 
premises  paid  to  C  the  back  tax  and  the  interest  on  the  price, 
and  the  year  after  paid  another  year's  interest  on  that  sum. 

93  Davis  V.  Hopkins,  18  Colo.  153,  Moffit,  14  Minn.  289,  100  Am.  Dec. 
32  Pac.  70.  222;  Hyndman  v.  Hyndman,  19  Vt. 

94  See  ante,  §§  1025,  1107.  10,  46  Am.  Dec.  171. 

95  Willis  V.  Miller,  23  Oreg.  352,  9'  Lounsbury  v.  Norton,  59  Conn. 
31  Pac.  827.  170,  22  Atl.  153. 

96  See   Lounsbury   v.    Norton,   59  98  14  Minn.  289,  100  Am.  Dec.  222. 
Conn.  170,  22  Atl.  153;    Horton   v. 

Mortg.  Vol.  II.— 98. 


1554  MORTGAGE    FORECLOSURES.  [§    1155 

The  year  following  this  second  payment,  B  paid  to  the  sheriff 
of  the  county  for  the  purpose  of  redeeming  the  premises  from 
sale,  the  amount  for  which  they  had  been  sold  and  one  year's 
interest  thereon,  of  which  the  sheriff  paid,  and  C  received 
twenty-three  twenty-fifths,  leaving  a  balance  of  two  twenty- 
fifths  in  the  sheriff's  hands.  The  court  held  that  before  the 
time  to  redeem  expired,  the  estate  of  the  purchaser  was  that 
of  a  mortgage  before  foreclosure,  an  equitable  estate  or  in- 
terest; that  either  of  the  cotenants  might  redeem  the  whole 
estate  from  the  sale;  that  C  having  acquired  the  purchaser's 
interest  when  the  relation  to  co-tenant  did  not  exist,  his  right 
was  fixed  to  hold  and  enforce  it  for  his  own  benefit ;  and  that 
there  was  no  merger  of  the  estate  of  C  by  his  acquiring  the 
title  to  the  two  twenty-fifths  of  A. 

In  the  case  of  Hyndman  v.  Hyndman,®^  A  being  indebted  to 
B  executed  to  him  an  absolute  deed  to  his  farm,  taking  back  a 
written  defeasance.  A  received  further  advances  from  B  until 
the  sum  amounted  to  $600.  Then  they  agreed  that  B  should 
have  the  farm  for  $800.  B  gave  his  note  to  A  for  the  differ- 
ence, and  A  surrendered  up  his  writing  of  defeasance;  but  it 
was  agreed  verbally  between  them  that  B  should  sell  the  farm 
and  A  to  have  what  he  received  over  $800  after  paying  B 
for  his  time  and  trouble.  The  court  held  that  contract  must, 
in  equity,  be  still  considered  as  a  mortgage  with  a  power  of 
sale,  and  that  A  should  be  allowed  to  redeem  the  premises  upon 
a  bill  brought  for  that  purpose. 

§  1155.  Same — Fraud  and  misrepresentation  as  ground 
for. — It  is  a  well  settled  rule  of  law  that  fraud  vitiates 
everything  into  which  it  enters.  Applying  this  doctrine  that  it 
has  been  said  that  the  relation  of  mortgagor  and  mortgagee, 
created  by  a  vendee's  taking  possession  and  paying  a  part  of 
the  price  under  a  contract  for  the  purchase  of  land  entitling 
him  to  a  deed  upon  full  payment  therefor,  is  not  changed  and 

99  19  Vt.  10,  46  Am.  Dec.  171. 


§    1156]  REDEMPTION.  1555 

his  right  to  redeem  lost  or  defeated  by  an  attornment  or  exe- 
cution of  a  lease  by  him  to  the  vendor  or  the  latter's  grantee 
subject  to  the  vendee's  rights,  especially  if  the  lease  is  obtained 
by  fraud  or  misapprehension  of  the  facts  as  to  the  state  of  his 
title. ^  And  the  supreme  court  of  Illinois,  in  the  case  of  Daw- 
son V.  Vickory,^  say  that  in  an  action  to  foreclose  a  mortgage, 
in  which  a  defendant  sets  up  a  subsequent  conveyance  of  the 
premises  to  him,  and  that  he  is  entitled  to  redeem  thereunder, 
such  conveyance  will  be  set  aside  and  the  mortgagor  permitted 
to  redeem,  upon  alleging  by  way  of  crossbill  and  proving  that 
the  conveyance  was  obtained  by  false  representations. 

§  1156.  Same — Unforeseen   event  as   ground  for. — In 

some  of  the  cases  the  establishing  of  an  unforeseen  event 
preventing  payment  has  been  held  to  raise  an  equity  that 
justifies  letting  a  party  in  to  redeem.^  Thus,  in  Kopper  v. 
Dyer,*  it  is  said  that  when  a  mortgagor  is  prevented  by  acci- 
dent from  paying  an  installment  on  the  day  named  in  a  decree 
of  foreclosure,  equity  will  grant  relief;  but  on  terms  that  he 
satisfy  the  equitable  rights  of  the  other  party.  And  in  the 
case  of  Bostwick  v.  Stiles,^  where  an  uncle  of  the  mortgagor,, 
a  man  of  ample  means,  had  promised  the  mortgagor  that  he 
would  provide  him  with  the  money  necessary  to  pay  the 
mortgage,  which  was  about  to  be  foreclosed,  and  the  mort- 
gagor relied  upon  such  promise,  but  the  uncle  failed  to  furnish 
the  money,  the  court  held  that  the  mortgagor  was  prevented 
from  paying  the  mortgage  by  an  unforeseen  event,  and  that 

1  Tant  V.  Guess,  2,7  S.  C.  489,  16  2  ISO  III.  398,  27  N.  E.  910. 

S.   E.  472.     See    Holridge    v.    Gil-  3  See  Bariwick  v.  Stiles,  35  Conn.. 

Icsl^ie,  2  John.   Ch.     (N.    Y.)     30;  195;  Seymour  v.  Davis,    35    Conn. 

Villa  V.  Rodriguez,  79  U.    S.     (12  264;  Kopper  v.  Dyer,  59  Vt.  477,  59 

Wall.)   323;  sub  nom  Alexander  v.  Am.  Rep.  742. 

Rodriguez,  20  L.  ed.  406 ;  Russell  v.  ^  59  Vt.  477,  59  Am.  Rep.  742. 

Southard,  53  U.  S.  (17  How.)   139,  5  35  Conn.  195.     See  Seymour  v. 

13  L.   ed.  927 ;    Webb  v.  Rorke,  2  Davis,  35  Conn.  264. 
Sell.  &  L.  661,  9  Rev.  122. 


1556  MORTGAGE    FORECLOSURES.  [§    1157 

he  was  entitled  to  relief  in  a  court  of  equity;  to  have  the 
foreclosure  opened  and  be  allowed  to  redeem. 

§  1157.  Same — Breach  of  faith  as  ground  for. — It   is 

thought  that  a  breach  of  faith  on  the  part  of  the  mortgagee 
or  purchaser  of  the  mortgaged  property,  by  which  the  mort- 
gagor, or  those  claiming  under  him,  are  injured,  will  furnish 
ground  for  letting  the  injured  party  in  to  redeem.^  Thus, 
the  supreme  court  of  Illinois,  in  Union  Mutual  Life  Insurance 
Company  v.  White,''^  say  that  an  oral  promise  by  the  president 
of  a  corporation  holding  a  trust  deed  that  the  debtor  shall  have 
time,  after  foreclosure,  to  pay  the  debt  thereby  secured,  if 
acted  on  by  the  debtor,  render  the  corporation,  on  thus  acquir- 
ing the  legal  title  for  much  less  than  its  value,  a  trustee  holding 
the  title  as  a  mortgage  for  payment  of  the  debt;  and  the  debtor 
may  yet  redeem  by  paying  the  sum  due,  with  expenses.*  The 
supreme  court  of  the  United  States,  in  the  case  of  Villa  v. 
Rodriguez,^  say  that  where  the  mortgagee  assured  the  mort- 
gagor, before  and  after  the  conveyance,  that  if  he  could  sell 
so  as  to  repay  him  the  money  secured  by  the  mortgage,  he 
would  return  the  surplus  money,  or  if  he  could  sell  a  portion 
sufficient  to  reimburse  him,  he  would  return  the  unsold  portion, 
he  cannot  repudiate  such  assurances  upon  which  his  grantors 
were  drawn  in  to  convey, 

§  1158.  Same — After  sale  to  mortgagee. — The  right  of 
a  mortgagor,  and  those  claiming  under  him,  to  redeem  from 

^  See  Union  Mutual  Life  Ins.  Co.  115,    to    the    same    effect.     In    this 

V.   White,  106  111.  67;  Eckerson  v.  case,  A's  property  was  to  be  sold 

McCulloh,  39  N.  J.  Eq.  (12  Stew.)  at   foreclosure   sale.     B   agreed   to 

115;  Alexander  v.  Rodriguez  {Villa  bid  it  in  for  A's  benefit.    The  court 

V.  Rodriguez)  79  U.  S.  (12  Wall.)  held  that  A  could  redeem  from  B, 

23,  20  L.  ed.  406.  who,  after  bidding  it  in,  repudiated 

■^  106  111.  67.  the  agreement. 

8  Court    of     Chancery    of    New  9  79  U.   S.    (12  Wall.)   323;   sub 

Jersey,  in  case  of  Eckerson  v.  Mc-  nom.  Alexander  v.  Rodriguez,  20  L. 

Culloh,  39  N.  J.    Eq.    (12    Stew.)  ed.  406. 


§  1159] 


REDEMPTION. 


1557 


a  mortgage  after  conveyance  of  the  equity  of  redemption  to 
the  mortgagee,  has  already  been  discussed.^"  The  right  to  re- 
deem after  such  a  conveyance,  where  made  without  a  sufficient 
consideration,  is  well  established."  Thus,  it  is  said,  in  Burton 
V.  Perry,^^  that  the  conveyance  of  mortgaged  property  worth 
much  more  than  the  amount  of  the  mortgage,  to  the  mort- 
gagee, without  any  consideration,  and  without  the  return  of 
the  mortgage  notes  and  securities,  upon  the  request  of  the 
mortgagee,  on  the  ground  that  such  conveyance  was  needed 
by  him  in  a  pending  suit,  in  subsequent  pleadings  in  which  he 
sets  up  his  claim  as  mortgagee,  does  not  extinguish  the  mort- 
gagor's equity  of  redemption. 

§  1159.  Same — Where  interested  person  not  party  to 
foreclosure. — We  have  already  seen  that  all  persons  who 
have  an  interest  in  the  mortgaged  property  subsequent  to  the 
mortgage  being  foreclosed,  must  be  made  parties  defendant, 
or  their  rights  will  not  be  affected  by  the  decree  of  fore- 
closure and  sale  thereunder."  On  this  ground  it  has  been 
said  that  where  lands  have  been  sold  under  a  decree  of  fore- 
closure on  a  senior  mortgage,  the  junior  mortgagee,  not 
being  a  party  to  the  suit,  may  redeem  ^*  from  the  purchaser 


10  See  ante,  §  1047. 

"  Burton  v.  Perry,  146  111.  71,  34 
N.  E.  60.  See  Thompson  v.  Lee,  31 
Ala.  292;  Ennor  v.  Thompson,  46 
111.  214;  Brown  v.  Gaffney,  28  111. 
149;  Russell  v.  Southard,  53  U.  S. 
(12  How.)   139,  13  L.  ed.  927. 

12  146  111.  71,  34  N.  E.  60. 

13  See  ante,  §  1111. 

The  supreme  court  of  Con- 
necticut, in  the  case  of  Pritchard  v. 
Elton,  38  Conn.  434,  say  that  a  peti- 
tion by  heirs  of  a  mortgagor,  to 
redeem  dismissed,  although  they 
were  not  parties  to  the  foreclosure, 
on  the  ground  that  the  mortgagor 
had  released  the  right  of  redemp- 


tion under  peculiar  circumstances 
warranting  a  court  of  equity  in  sus- 
taining the  release. 

1*  As  to  junior's  mortgagee's 
right  to  redeem.  See  ante,  §  1105. 
The  right  to  redeem  in  such  case, 
is  not  governed  by  the  limitation  of 
two  years,  which  in  Alabama,  is  the 
prescribed  bar  to  proceedings  under 
the  statute;  but  may  be  asserted  at 
any  time  while  the  mortgage  is 
operative.  Wiley  v.  Ewing,  47  Ala. 
418. 

Under  the  Iowa  law.  making  the 
interest  of  the  mortgagee  not  an 
estate  in  land  but  simply  a  specific 
lien    thereon    to    secure    the    debt. 


1558  MORTGAGE    FORECLOSURES,  lS    1^60 

at  the  sale,  on  paying  the  amount  of  his  bid,  with  interest 
and  costs,  and  the  value  of  all  permanent  improvements  erected 
by  him  up  to  the  time  of  the  tender,  or  offer  to  redeem;  and 
if  the  tender  is  refused,  the  purchaser  is  chargeable  with  the 
value  of  the  rent  from  the  time  of  the  tender  and  refusal. ^^ 
But  it  is  said  by  the  supreme  court  of  Nebraska,  in  the  case' 
of  Miller  v.  Finn,^^  that  where  a  foreclosure  of  a  mortgage  is 
had,  and  the  decree  completely  executed,  and  the  purchase- 
money  paid,  and  then  an  incumbrancer  who  was  not  made  a 
party  to  the  bill  to  foreclose  brings  his  action,  the  right  of 
such  incumbrancer  to  a  decree  to  redeem  his  premises  and  re- 
ceive a  conveyance  of  the  land  mortgaged  is  not  absolute.  In 
the  absence  of  fraud,  the  owner  of  the  land  under  the  fore- 
closure and  sale  should  be  protected  in  his  title,  subject  only  to 
the  payment  of  the  creditor's  just  claim. 

§  1160.  Same — Where  mortgagee  takes  possession  on 
default. — The  right  of  a  mortgagee  to  take  possession  of 
the  mortgaged  property  on  default  is  well  established,  in  the 
absence  of  prohibitory  statutes.  The  supreme  judicial  court 
of  Massachusetts,  in  the  case  of  Lamson  v.  Drake,^'  say  that 
a  tenant  for  life  of  land,  on  which  there  is  a  mortgage  over- 
due, cannot  hold  possession  of  the  land  against  the  mort- 
gagee, by  paying  interest  as  it  accrues,  nor  can  he,  by  paying 
the  amount  of  the  mortgage,  compel  the  mortgagee  to  assign 
it  to  him ;  but  a  bill  brought  for  these  purposes  may  be  main- 
tained as  a  bill  to  redeem,  if  the  plaintiff  alleges  his  willing- 
ness to  pay  the  amount  due  on  the  mortgage  "in  such  way  or 
upon  such  other  terms  as  the  court  may  direct,"  and  the  an- 
swer alleges  that  defendant's  readiness  to  account  as  ordered 

which  is  the    principal    thing, — the  chestcr,  2)Z  Iowa,  303.     See  Hodgen 

right  of   a  junior  mortgagee,  who  v.  Guttery,  58  111.  431. 

was  not  made  a  party  to    a    fore-     ^^  iVUey  v.  Ewing,  47    Ala.    418. 

closure  of  a  prior  mortgage,  to  re- See  post,  §  1183. 

deem      therefrom,      is       absolutely     ^^  1  Neb.  254. 

barred  in  ten  years.    Gower  v.  Win-     ^'  105  Mass.  564. 


§    1161]  REDEMPTION.  1559 

by  the  court.  The  same  court,  in  the  case  of  Haskins  v. 
Hawkes,^'  say  that  the  heirs  at  law  of  a  mortgagee,  by  enter- 
ing to  foreclose,  become  executors  in  their  own  wrong,  and 
the  mortgagor  to  be  entitled  to  a  decree  against  them  for  re- 
demption, and  for  the  rents  and  profits  to  be  accounted  for 
by  them  to  an  administrator  appointed  upon  the  mortgagor's 
petition,  and  applied  on  the  mortgage  debt. 

§  1161.  Same — Costs  on. — It  has  been  said  that  a  junior 
mortgagee  may  redeem  from  the  foreclosure  of  a  senior  mort- 
gage, to  which  action  he  was  not  a  party,  without  paying  the 
costs  of  such  suit.^^  But  it  is  thought  that  a  mortgagor  who 
waits  until  after  the  advertisement  of  the  property  for  sale 
before  filing  his  bill  to  redeem,  although  notified  several 
months  before  that  it  was  advertised  for  sale  under  a  power  in 
the  mortgage,  will  be  required  to  pay  the  costs  of  advertising.^" 

It  is  said  by  the  supreme  judicial  court  of  Massachusetts, 
in  the  case  of  Hart  v.  Goldsmith,^^  that  in  a  suit  in  equity 
to  redeem  a  mortgage,  if  the  defendant,  by  his  answer, 
claims  the  performance  of  an  usurious  contract,  the  mort- 
gagor is  entitled  to  the  benefit,  under  the  statute,  of  a  for- 
feiture for  usury  in  reduction  of  the  sum  payable  upon 
the  mortgage;  and  if  the  sum  tendered  added  to  the  for- 
feiture equals  the  amount  due  on  the  mortgage,  the  redemp- 
tioner  will  be  entitled  to  a  decree  for  redemption,  without 
further  payment,  and  for  his  costs.  In  the  case  of  Shield's 
v.  Lozear,^^  where  a  tender  of  the  amount  due  on  the  mort- 
gage was  made  after  its  maturity,  and  acceptance  was  refused 
by  the  mortgagee  in  possession,  on  a  bill  in  equity  to  redeem. 

18  108  Mass.  379.  zo  Means  v.  Anderson,    19    R.    I. 

19  Gaskell  V.   Viqucsney,  127  Ind.       118,  32  Atl.  82. 

244,  17  Am.  St.  Rep.  364,  23  N.  E.  2133  Mass.    (1    Allen)    145.     See 

791;  Gage  v.  Brewster,  31  N.  Y.  Smith  v.  Robinson,  92  Mass.  130. 
218.     See  post,  §   1184.  132. 

22  22  N.  J.  Eq.  (7  C.  E.  Gr. )  447. 


1560  MORTGAGE    FORECLOSURES.  [§    1162 

the  court  held  that,  under  the  circumstances,  the  complainant 
was  entitled  to  a  decree  with  costs. 

§  1162.  When  not  allowed — Generally. — There  are 
many  cases  in  which  redemption  is  not  allowed;  among  these 
is  case  of  appeal,  where  the  statute  prohibits  redemption,^^ 
or  the  time  allowed  for  redemption  has  expired ;  ^*  where 
the  mortgage  is  fraudulent;  ^^  where  a  judgment  for  deficiency 
is  entered  although  no  indebtedness  actually  exists,  and  such 
judgment  is  made  the  basis  for  proceedings  to  redeem ;  ^^  where 
the  applicant  is  the  owner,  or  has  an  interest  in  only  part  of 
the  mortgaged  premises;  ^'  where  the  right  is  based  on  a  parol 
agreement  respecting  the  mortgaged  property;  ^^  in  case  of  the 
sale  of  a  railroad;  ^'  in  case  of  sale  of  the  mortgaged  property 
on  execution  or  debt  other  than  the  mortgage  debt ;  ^°  in  cases 
of  trust  in  which  the  trustee  has  acted,^^  and  the  like. 

The  supreme  court  of  New  York,  in  the  case  of  Lewis  v. 
Duane,^^  say  that  under  a  collateral  agreement  between  a 
mortgagor  and  mortgagee  that  the  mortgagee  is  to  be  secured 
only  against  liabilities  of  an  unascertained  amount,  and  that 
the  mortgage  is  to  be  indorsed  or  reduced  down  to  the  amount 
when  ascertained,  the  mortgagee  is  not  a  trustee  for  the  mort- 
gagor ;  nor  can  the  latter  redeem  from  a  foreclosure  had  with- 
out such  ascertainment.  And  the  supreme  court  of  Iowa,  in 
the  case  of  Lysinger  v,  Hayer,''  say  that  a  senior  mortgagor 
cannot  redeem  from  a  junior  lien  under  the  Iowa  Code,^*  pro- 
viding that  the  terms  of  redemption  shall  be  the  reimburse- 
ment of  the  amount  paid  by  the  then  lienholder,  added  to  the 

23  As   Iowa    Code,    §   3102.     See  28  See  post,  §  1203. 

Lombard  v.  Gregory,  90  Iowa,  682,  ^^  See  post,  §  1168. 

57  N.  W.  621.  30  See  post,  §  1169. 

2*  See  Seymour  v.  Bailey,  66  111.  31  See  post,  §  1170. 

288.  32  69  Hun   (N.  Y.)  28,  23  N.  Y. 

25  See  atite,  §  1144,  post,  §  1165.  Supp.  433,  52  N.  Y.  S.  R.  818. 

26  Wetherbee  v.  Fitch,  117  111.  67,  33  87  Iowa,  335,  54  N.  W.  145. 
7  N.  E.  513.  34  la.  Code,  §§  3166,  3107. 

27  See  ante,  §  1102. 


§    1163]  REDEMPTION.  1561 

amount  of  his  own  lien,  with  interest  and  costs,  and  that  when 
the  senior  creditor  thus  redeems  from  his  junior  he  is  required 
to  pay  off  only  the  amount  of  those  liens  paramount  to  his 
own. 

§  1163.  Same — In  case  of  action  in  another  court. — It  is 

thought  that  where  land  has  been  mortgaged  to  secure  the 
deferred  payments,  the  fact  that  the  title  of  the  vendor  is 
attacked  in  the  federal  courts  will  not  deprive  the  state 
courts  in  which  the  land  lies  of  jurisdiction  in  the  matter 
of  the  mortgage,  and,  for  that  reason,  will  not  stay  foreclo- 
sure thereof,  or  extend  the  time  for  redemption  thereof.  Thus, 
in  Seymour  v.  Bailey,^®  the  complainant  purchased  land  of  A, 
giving  a  mortgage  to  secure  the  deferred  payments,  and,  after 
his  purchase,  without  notice  of  any  equitable  claim  to  the  land, 
the  administrator  of  B  filed  his  bill  in  equity,  in  the  United 
States  circuit  court,  alleging  that  this  and  other  lands  had  been 
purchased  by  A  with  funds  furnished  by  B,  on  a  speculation, 
to  be  afterwards  sold,  and  after  repayment  of  the  outlay,  with 
interest  and  taxes,  one-half  of  the  profit  to  be  paid  to  B,  pray- 
ing for  an  account  and  that  the  unsold  lands  be  sold,  and  for 
an  injunction  against  A  making  further  sales.  No  further 
injunction  was  in  fact  ever  issued,  or  a  receiver  appointed. 
The  complainant  was  not  a  party  to  the  suit,  and,  during  its 
pendency  and  during  the  late  war,  A  foreclosed  the  mortgage, 
and  the  premises  were  sold  and  purchased  by  him.  After  the 
time  of  redemption  had  expired,  the  complainant  filed  his  bill 
in  chancery  to  open  and  set  aside  the  decree  of  forclosure  and 
sale,  and  for  redemption  of  the  land.  The  court  held  that 
the  pendency  of  the  suit  in  the  United  States  circuit  court 
afforded  no  excuse  to  the  complainant  in  not  making  his  pay- 
ments, and  did  not  have  the  effect  to  deprive  the  courts  of 
Illinois  of  jurisdiction  to  decree  a  foreclosure  of  the  mortgage, 

35  66  111.  288. 


1562  MORTGAGE    FORECLOSURES.  [§    1164 

and  consequently  was  no  ground  for  equitable  relief  against 
the  proceeding  to  foreclose. 

§  1164.  Same — In  case  of  appeal,  when. — Under  the 

statutes  in  some  of  the  states  the  right  to  redeem  is  lost  by 
an  appeal  from  a  judgment  of  foreclosure  and  decree  of  sale 
of  the  mortgaged  premises.  Thus,  it  is  said,  in  Lombard  v. 
Gregory,^^  that  one  who  appeals  from  a  judgment  of  fore- 
closure and  sale  of  land  loses  the  right  of  redemption  although 
the  judgment  is  reversed  under  Iowa  Code,^'  providing  for 
redemption  of  land  within  one  year  from  the  day  of  sale,  but 
that  in  no  action  where  defendant  has  taken  an  appeal  from 
the  district  court  shall  he  be  entitled  to  redeem. 

§  1165.  Same — In  case  of  fraud,  when. — We  have  al- 
ready seen  ^*  a  judgment  for  deficiency  entered  where  no  in- 
debtedness actually  exists  cannot  be  used  for  the  purpose  of 
redemption,'^  and  it  is  thought  that  a  fraudulent  mortgage 
creates  no  equity  of  redemption  in  respect  to  a  creditor  of 
the  mortgagor,  who,  by  extending  his  execution  in  the  usual 
form  upon  the  land  mortgaged,  elects  to  treat  it  as  a  nullity; 
and  the  sale  of  the  equity  of  the  redemption  of  such  mort- 
gage does  not  convey  anything,  even  to  an  innocent  purchaser 
without  notice  of  the  fraud.*" 

§  1166.  Same — In  case  of  owner  of  part  of  mortgaged 
premises. — The  general  rule  is  that  the  owner  of  a  part  of 
the  mortgaged  premises  can  make  redemption  only  by  pay- 
ing the  whole  of  the  mortgage  debt.*^     This  rule,  however, 

86  90  Iowa,  682,  54  N.  W.  621.  Am.  Dec.  595.     See    ante,    §    1025, 

8'  la.  Code,  §  3102.  post,  §  1171. 

88  See  ante,  §   1144.  The  rule  in  the  supreme  court  of 

89  Wetherbee  v.  Fitcli,  117  111.  67,  the  United  States,  as  laid  down  in 
7  N.  E.  513.  Villa    v.    Rodrigues,  79  U.   S.    (12 

^^  Bui  lard  v.   Hinkley,  6  Me.    (6      Wall.)  323;  sub  nom.  Alexander  v. 

Greenl.)  289,  20  Am.  Dec.  304.  Rodriguez,   20   L.    ed.   406,    is   that 

*i  Smith  V.  Kelley,  27  Me.  237,  46       one  who  holds  a  portion  of  the  title 


§    1168]  REDEMPTION.  1563 

is  for  the  protection  of  the  mortgagee,  and  will  not  be  applied 
where  the  equities  of  the  mortgagee  in  possession  are  such 
that  injustice  will  be  done  to  him  if  he  is  compelled  to  convey 
the  whole  premises  upon  receipt  of  the  mortgage  debt.*^ 

§  1167.  Same — In  case  of  parol  agreement. — The  su- 
preme court  of  Kentucky,  in  Clark  v.  Renaker,*^  say  that  a 
right  of  redemption  from  a  mortgage  sale,  founded  on  a 
parol  agreement,  should  never  be  enforced  unless  clearly 
and  satisfactorily  proved.  The  supreme  court  of  Virginia, 
in  the  case  of  Jordan  v.  Katz,**  say  that  one  in  possession 
of  land  under  a  parol  agreement  by  which  another  who  has 
purchased  it  is  to  convey  upon  repayment  of  the  purchase 
money,  waives  all  rights  under  such  agreement  by  subsequently 
becoming  the  tenant  of  the  latter  and  paying  rent  for  the 
property. 

§  1168.  Same — In  case  of  railroads. — Under  the  stat- 
utes in  some  of  the  states  the  rules  as  to  redemption  on  mort- 
gage foreclosures  do  not  apply  to  railroads  sold  on  mortgage 
foreclosure.  Thus  it  is  said  that  a  railroad,  when  lawfully 
mortgaged  as  an  entirety,  is  not  real  estate  within  the  Ken- 
tucky statute  conferring  the  right  to  redeem  real  estate  when 
sold  to  foreclose  a  mortgage — especially  in  view  of  the  provis- 
ion of  the  Kentucky  constitution,*^  to  the  effect  that  the  roll- 
ing stock  of  a  railroad  shall  be  considered  personal  property.*® 
And  it  is  said  in  the  case  of  Hammock  v.  Farmers'  Loan 
and  Trust  Company,*''^  that  the  legislation  of  Illinois  giving  the 
right  to  redeem  mortgaged  lands  sold  under  the  decree  does 

by   deed    from    a    portion    of    the  ^3  20  S.  W.  534,   14  Ky.  L.  Rep. 

mortgagor's    is    clothed    with    their  465. 

rights,    and    is    entitled    to    redeem  **  89  Va.  628,  16  S.  E.  866,  17  Va. 

such  portion  upon  paying  a  proper  L.  L.  J.  160. 

proportion    of   the    mortgage    debt  *5  1  Am.  Const.  714,  §  212. 

and  interest.  *^  Columbia  Finance  &  T.  Co.  v. 

^Shearer  v.  Field,  6  Misc.    (N.  Kentucky  U.  R.  Co.  60  Fed.  794. 
Y.)  189,  27  N.  Y.  Supp.  29.  *'  105  U.  S.  77,  26  L.  ed.  111. 


1564  MORTGAGE   FORECLOSURES.  [§    1169 

not  embrace  the  real  estate  of  a  railroad  corporation  mort- 
gaged in  connection  with  its  franchises  and  personal  prop- 
erty. Its  real  estate,  personalty  and  franchises  so  mortgaged 
should  be  sold  as  an  entirety,  and  without  the  right  of  redemp- 
tion given  by  statute. 

§  1169.  Same — In  case  of  sale  of  mortgaged  premises. — 

The  general  rule  has  been  said  to  be  that  a  mortgagor's  right 
to  redeem  is  not  prejudiced  by  any  conveyance  of  the  whole  or 
of  parts  of  the  mortgaged  premises,  made  by  the  mortgagee ;  ** 
but  in  those  cases  where  the  mortgagee  has  taken  possession, 
not  simply  under  his  mortgage,  but  under  a  valid  sheriff's 
deed  on  execution  against  the  mortgagor  for  another  than 
the  mortgage  debt,  there  can  be  no  redemption.*^  The  su- 
preme court  of  Arkansas,  in  the  case  of  Martin  v.  Ward,®'' 
say  that  a  mortgagor  of  land  has  no  right  to  redemption  after 
a  decree  of  foreclosure  and  sale  of  land,  under  the  statute  of 
the  state,®^  providing  that  the  mortgagee  or  other  person  au- 
thorized to  make  a  sale  under  the  mortgage  shall  apply  to  a 
justice  of  the  peace  for  the  appointment  of  appraisers,  that 
the  land  when  first  offered  for  sale  shall  not  be  sold  for  less 
than  two-thirds  of  its  appraised  value,  and  that  the  land  sold 
thereunder  may  be  redeemed  by  the  mortgagor  at  any  time 
within  a  year  from  the  sale,  as  it  applies  only  to  a  sale  under 
a  power  contained  in  the  mortgage. 

§  1170.  Same — In  case  of  trust. — In  the  case  of  Johnson 
V.  Robertson,®^  the  mortgaged  premises  were  conveyed  by  a 
husband  to  a  trustee,  for  the  benefit  of  his  wife.  The  husband 
and  wife  removed  from  the  state,  leaving  the  trustee  in  the 
town  where  the  mortgaged  property  was  situated.     A  bill 

«  Wilson  V.  Troup,  2  Cow.    (N.  60  60  Ark.  510,  30  S.  W.  1041. 

Y.)    195,   14    Am.    Dec.    458.     See  6i  Ark.  Act.  March  17,  1879. 

ante,  §  1062.  62  31  Md.  476. 

*5  Freiknecht  v.  Meyer,  38  N.  J. 
Eq.  (11  Stew.)  315. 


§     1170]  REDEMPTION.  1565 

of  foreclosure  being  filed,  the  trustee  appeared,  and  by  an- 
swer "submitted  to  such  decree  in  the  premises  as  might  be 
right."  In  the  decree  foreclosing  the  mortgage,  no  day  was 
named  on  which  the  trustee  might  redeem.  The  court  held 
that  the  trustee  having  submitted  to  such  decree  as  might  seem 
right,  he  had  waived  the  privilege  of  having  a  day  to  bring 
in  the  money.  Also  that  the  cestui  que  trust  was  bound  by 
the  act  of  the  trustee,  and  that,  in  the  absence  of  any  evi- 
dence of  injury  to  her  or  the  trust  estate,  she  could  not  be 
allowed  to  impeach,  or  ask  a  reversal  of  the  decree  on  that 
account 


CHAPTER  XLII. 

REDEMPTION— TERMS,    CONDITIONS,    MODE   AND   EFFECT. 

§  1171.  Amount  payable  to  effect  redemption— Discretion  of  court. 

§  1172.  Same — Before  foreclosure. 

§  1173.  Same — After  foreclosure  and  sale. 

§  1174.  Same — Same — Where   mortgage   to   secure   further   advances. 

§  1175.  Same — Same — Where  part  only  of  debt  due. 

§  1176.  Mode  of  payment  and  effect. 

§  1177.  Tender  on   redemption. 

§  1178.  Usurious  and  compound  interest. 

§  1179.  Redeeming  whole  of   mortgaged  land. 

§  1180.  Redeeming  but  part  of  mortgaged  land. 

§  1181.  Requiring  reconveyance  of  other  titles. 

§  1182.  Repairs — Allowance  for  on  redemption. 

§  1183.  Rents  and  profits — Accounting  for. 

§  1184.  Payment  of  costs  of  suit. 

§  1185.  Taxes   and  assessments  and   disbursements. 

§  1186.  Surrender  of   premises   under   statute. 

§  1187.  Allowance  as  attorney  fees. 

§  1188.  Notice  of  intention  to  redeem. 

§  1189.  Payment  for  improvements. 

§  1190.  Right  to  assignment  of  mortgage. 

§  1171.  Amount  payable  to  effect  redemption — Discre- 
tion of  court. — A  court  of  equity  has  the  discretion,  gov- 
erned by  the  equities  of  each  case,  to  name  the  terms  on  which 
and  the  time  within  which  it  will  let  in  a  party  to  a  mortgage 
foreclosure  to  redeem. ^^  The  fact  that  a  party  seeking  to  re- 
deem from  an  equitable  mortgage  must  be  regarded  as  bringing 
the  amount  which  should  be  found  due  into  court  and  tender- 
ing the  same,  he  cannot  complain  of  the  amount  required  or  the 
shortness  of  time  fixed  by  the  court  for  its  payment.^* 

^^Hanna  v.  Davis,   112  Mo.  599,  ^^Magmtsson  v.  Charlson,  32  111. 

20  S.  W.  686.  App.  580. 

1566 


§    1172]  REDEMPTION.  1567 

§  1172.  Same — Before  foreclosure. — One  seeking  to  re- 
deem must  pay  all  sums  due  under  a  mortgage,^'  and  perform 
all  the  conditions.*^  If  the  person  seeking  to  redeem  is  inter- 
ested in  only  a  portion  of  the  mortgaged  premises,  he  must 
nevertheless  pay  the  whole  debt,  because  the  mortgagee  can- 
not be  required  to  separate  his  claim."  The  supreme  judicial 
court  of  Massachusetts,  in  the  case  of  Stone  v.  Ellis,*^  say 
that  the  grantee  of  an  estate  upon  condition,  who  mortgages 
to  his  grantor,  and,  after  a  foreclosure  by  the  mortgagee  on 
breach,  files  a  bill  to  redeem,  he  will  be  allowed  to  redeem  only 
upon  removing  all  incumbrances  specified  in  the  mortgage,  and 
performing  the  conditions  annexed  to  his  deed.^^ 

Where  a  mortgagee  has  taken  possession  of  the  mortgaged 
premises  on  breach  of  condition,  the  mortgagor  or  those  claim- 
ing under  him  can  redeem  by  paying  the  whole  mortgage  debt ; 
because  the  mortgagee  is  not  compellable  to  accept  a  less 
amount  than  the  whole  of  his  claim,  and  may  retain  possession 
until  it  is  paid ;  ^°  and  this  is  true  even  when  the  proceedings 
to  redeem  are  brought  by  the  grantee  of  a  mortgagor  who  has 
obtained  a  certificate  of  discharge  in  proceedings  in  bank- 
ruptcy." 

55  See  post,  §  1179.  Johnson  v.  Johnson,  Walk.  (Mich.) 

56  See    Gliddon    v.    Andrews,    14  331 ;  A'^^^?- v.  C/j#or(f,  59  N.  H.  208; 
Ala.  733;  Andreas  v.  Hubbard,  50  Fletcher  v.  Chase,  16  N.  H.  42. 
Conn.  351;  Seymour   v.    Davis,    35  57  See  ante,  §  1102;  post,  §  1173. 
Conn.  264;  Franklin  v.   Gorham,  2  5853  Mass.  (9  Cush.)  95. 

Day   (Conn.)    142,  2  Am.  Dec.  86;  59  See  Cowles  v.  Marble,  37  Mich. 

Meacham    v.    Steele,    93    111.    135;  158. 

Spurgen  v.  Adamson,  62  Iowa,  661,  ^o  See  Wood  v.  Holland,  S3  Ark. 

18  N.  W.  293;  Douglass  v.  Bishop,  69,  13  S.  W.  739;  Fogall  v.  Pirro,  17 

27  lo^2.,2\6;  Smiths.  Kelly, 27  Uq.  Abb.     (N.    Y.)     Pr.    113;    Bell    v. 

237,  46  Am.    Dec.    595 ;    Dooley    v.  Mayor,  etc.  of  New  York,  10  Paige 

Potter,    146    Mass.    148;    Lamb  v.  Ch.     (N.    Y.)    49;     Rodriguez     v. 

Montague,  112  Mass.  352;  Merritt  v.  Haynes,  76  Tex.  225.  13  S.  W.  296. 

Hostner,  77  Mass.  (11  Gray)  276,71  ^^  Stewart  v.  Anderson,    10    Ala. 

Am.  Dec.  713;  McCabe  v.  Bellows,  504;  Childs  v.  Childs,  10  Ohio  St. 

73  Mass.  (7  Gray)  148,  66  Am.  Dec.  339.  75  Am.  Dec.  512;  Steadman  v. 

467 ;  People  v.  Fralick,  12  Mich.  235  ;  Gassett,  18  Vt.  346. 


1568  MORTGAGE    FORECLOSURES.  [§    1173 

§  1173.  Same — After  foreclosure  and  sale. — In  many 
of  the  states  the  right  to  redeem  within  a  prescribed  time 
after  sale  under  a  decree  of  foreclosure  is  given  by  statute. 
This  right,  when  thus  given,  is  a  substantial  one,  and  must 
be  recognized  and  enforced  by  all  courts,  even  the  United 
States  courts  sitting  in  equity,  because  the  statute  constitutes 
a  rule  of  property  in  the  state  that  enacts  it.®^  The  general 
rule  ^  is  that  under  such  a  statute  any  person  seeking  to  re- 
deem after  foreclosure  and  sale  must  pay  the  full  amount  of 
the  mortgage  debt.  In  those  cases  where  the  mortgaged  prop- 
erty has  been  sold  for  less  than  the  mortgage  debt,  it  will  not 
be  sufficient  to  tender  ®*  the  amount  for  which  the  property 
sold,  together  with  the  interest  and  costs ;  but  the  whole  mort- 
gage debt  must  be  tendered  or  paid  into  court.  The  reason  for 
this  is  because  the  party  offering  to  redeem  proceeds  upon  the 
hypothesis  that,  as  to  him,  the  mortgage  has  never  been  fore- 
closed and  is  still  in  existence.  Therefore  he  can  only  lift  it 
by  paying  the  full  amount  of  the  mortgage  debt.  The  money 
will  be  subject  to  distribution  between  the  mortgagee  and  the 
purchaser,  in  equitable  proportions,  so  as  to  reimburse  the 
latter  his  purchase  money,  and  pay  the  former  the  balance  of 
his  debt.^^ 

In  a  suit  brought  to  redeem,  in  ascertaining  the  amount 
that  is  to  be  paid  on  redemption,  a  conditional  judgment  on 

^^  Parker  v.  Dacres,  130  U.  S.  43,  6*  As  to  tender,  see  post,  §  1177. 

32  L.  ed.  848;  Connecticut  Mut.  L.  ^^  Collins  v.  Riggs,  81  U.  S.    (14 

Ins.  Co.  V.  Cushman,  108  U.  S.  51,  Wall.)    941,    20    L.    ed.    723.     See 

63,  27  L.   ed.  648,  652,  2  Sup.  Ct.  Wood  v.  Holland,  53  Ark.  69,  13  S. 

Rep.  236;  Mason  v.  Northwestern  W.    739;    McCabe    v.    Bellows,    12, 

Mut.  L.  Ins.  Co.  106  U.  S.  164,  27  Mass.    (7  Gray)    148,  66  Am.  Dec. 

L.  ed.   130,   1   Sup.   Ct.   165;  Ham-  467;  Adams  v.  Brown,  61  Mass.  (7 

mock  V.  Farmers  L.  &  T.  Co.  105  Cush.)  220;  Barker   v.    Pierson,    6 

U.  S.  77,  88;  26  L.  ed.  1111,  1115;  Mich.  522;  Jones  v.  Van  Doren,  130 

Brine  v.  Hartford  F.  Ins.   Co.  96  U.  S.  684,  692,  32  L.  ed.  1077.  1080, 

U.  S.  627,  24  L.  ed.  858.  9    Sup.    Ct.    Rep.    685;    Parker    v. 

63  Exceptions  to  the  general  rule  Dacres,  130  U.  S.  43,  32  L.  ed.  848. 

as  here  laid  down  are  set  out  here-  9  Sup.  Ct.  Rep.  433. 
after  and  fully  discussed  in  §  1180. 


1174] 


REDEMPTION. 


1569 


a  writ  of  entry  to  foreclose  is  conclusive  evidence  of  the 
amount  due  on  the  mortgage.®^  This  is  upon  the  familiar 
principle  that  a  matter  in  controversy,  which  has  once  been 
inquired  into  and  settled  by  a  court  of  competent  jurisdic- 
tion, cannot  be  drawn  in  question  in  another  suit  between 
the  same  parties.®'^ 

§  1174.  Same — Same — Where  mortgage  to  secure  fur- 
ther advances. — It  is  a  well  settled  rule  of  law  that  a  mort- 
gage to  secure  future  advances  or  services  is  valid,  even  when 
it  does  not  express  the  object  ;^^  yet  it  is  thought  that  where 
advances  are  made  and  services  rendered  subsequent  to  a 
judgment  or  mortgage  lien  will  be  a  second  lien  to  such  attach- 
ing lien.®'  And  it  is  said  if  further  advancements  are  made 
by  the  mortgagee  to  the  mortgagor  after  the  breach  of  the 
condition  of  the  mortgage,  under  an  oral  agreement  that  the 


^^Sparhawk  v.  Wills,  71  Mass.  (5 
Gray)  423. 

67  See  Burke  v.  Miller,  70  Mass. 
(4  Gray)  114;  Greene  v.  Greene,  68 
Mass.  (2  Gray)  364,  61  Am.  Dec. 
454;  Bigelow  v.  IVinsor,  67  Mass. 
(1  Gray)  301;  Homes  v.  Fish,  18 
Mass.  (1  Pick.)  439,  11  Am.  Dec. 
218. 

^^  Brink er ho ff  v.  Marvin,  5  John 
Ch.  (N.  Y.)  320;  V  elver  ton  v.  Shel- 
don, 2  Sandf.  Ch.  (N.  Y.)  781.  See 
Summers  v.  Roos,  42  Miss.  778,  2 
Am.  Rep.  653 ;  Ely  v.  Parkhurst,  25 
N.  J.  L.  (1  Dutch.)  192;  Ackerman 
V.  Hunsicker,  85  N.  Y.  49,  39  Am. 
Rep.  624,  21  Hun  (N.  Y.)  55;  Cook 
V.  Whipple,  55  N.  Y.  167,  14  Am. 
Rep.  213 ;  Curtis  v.  Leavitt.  15  N.  Y. 
208;  Truscott  v.  King,  6  N.  Y.  158; 
Averill  v.  Loucks,  6  Barb.  (N.  Y.) 
22;  Bank  of  Utica  v.  Finch,  3  Barb. 
(N.  Y.)  297;  Hall  v.  Crouse,  3  Hun 
(N.  Y.)  563;  James  v.  Johnson,  6 
Mortg.  Vol.  II.— 99. 


John.  Ch.  (N.  Y.)  429;  Craig  v. 
Tappin,  2  Sandf.  Ch.  (N.  Y.)  84; 
Barry  v.  Merchants  Exchange  Co. 
1  Sandf.  Ch.  (N.  Y.)  314;  Bank  of 
Albion  V.  Burns,  2  Lans.  (N.  Y.) 
57;  Lansing  v.  Woodworth,  2  N.  Y. 
Leg.  Obs.  251;  Turbeville  v.  Gibson, 
5  Heisk  (Tenn.)  596;  Jones  v.  New 
York  Guarantee  &  I.  Co.  101  U.  S. 
626,  25  L.  ed.  1034;  United  States 
V.  Lenox,  2  Paine  C.  C.  183. 

^^Ely  V.  Parkhurst,  25  N.  J.  L. 
(1  Dutch)  192;  Ackerman  v.  Hun- 
sicker, 85  N.  Y.  49,  39  Am.  Rep. 
624,  21  Hun  (N.  Y.)  55;  Curtis  v. 
Leavitt,  IS  N.  Y.  208;  Monot  v. 
Ibert,  33  Hun  (N.  Y.)  27;  Hall  v. 
Crouse,  13  Hun  (N.  Y.)  563; 
Yelverton  v.  Sheldon,  2  Sandf.  Ch. 
(N.  Y.)  781;  Barry  v.  Merchants 
Exchange  Co.  1  Sandf.  Ch.  (N.  Y.) 
314;  Terberville  v.  Gibson,  5  Heisk. 
(Tenn.)  597. 


1570  MORTGAGE    FORECLOSURES.  [§    1175 

mortgage  shall  stand  as  security  for  them,  a  court  of  equity 
will  not  aid  the  mortgagor,  or  anyone  who  has  no  higher 
equity  than  the  mortgagor,  to  redeem  without  allowing  for 
such  advancements  according  to  the  agreements  and  rules  of 
equity  between  the  parties.'" 

§  1175.  Same — Same — Where  part  only  of  debt  due. — 

Where  the  condition  of  the  mortgage  is  that  the  mortgagor 
shall  pay  several  sums  of  money  at  several  times,  and  upon 
the  non-payment  of  one  or  more  of  the  sums  first  falling  due 
the  mortgagee  enters  for  conditions  broken,  and  the  mort- 
gagor, or  those  claiming  under  him,  wishes  to  redeem,  the 
mortgagee  in  possession  will  not  be  compelled  to  accept  the 
money  not  yet  due,'^  but  the  mortgagor  has  a  right  to  regain 
possession  and  protect  his  estate  by  paying  or  tendering  the 
amount  which  is  due ;  '^  or  the  court  may  make  a  special 
decree,  upon  payment  of  the  sum  due,  declaring  that  the  pro- 
ceedings shall  stand  upon  leaving  the  mortgagee  in  possession 
until  the  further  sum  or  sums  shall  become  due.'^  It  is  thought 
that  a  different  rule  will  prevail  where  the  party  taking  pos- 
session has  two  or  more  mortgages  upon  the  same  premises, 
one  of  which  is  due  and  the  others  not  yet  due.     In  such  case 

'0  Taft    V.    Stoddard,    142    Mass.  who  has  taken  a  conveyance  from 

545,  550;  Stone  v.  Lane,   92    Mass.  the  mortgagor  with  a  knowledge  of 

(10  Allen)   74.     See  Upton  v.  Na-  the  facts.     Stone  v.  Lane,  92  Mass. 

tional  Bank  of  South  Reading,  120  (10  Allen)    74;  Joslyn  v.    Wyman, 

Mass.   153,   156;  Joslyn  v.   Wyman,  87  Mass.  (5  Allen)  62. 

87  Mass.  (5  Allen)  62;  Carpenter  v.  '''^Saunders  v.  Frost,  22  Mass.  (5 

Plagge,  192  111.  82,  61   N.  E.  530.  Pick.)  259,  16  Am.  Dec.  394. 

See  Merchants'  State  Bank  v.  Tufts,  "^^  Saunders  v.  Frost,  22  Mass.  (5 

14  N.  D.  238,  116  Am.  St.  Rep.  682,  Pick.)  259,  16  Am.  Dec.  394. 

103  N.  W.  760.  73  Saunders  v.  Frost,  22  Mass.  (5 

Thus  it  has  been  said  by  the  su-  Pick.)  259,  16  Am.  Dec.  394;  Mann 

preme    judicial    court    of     Massa-  v.  Richardson,  38  Mass.  (21  Pick.) 

chusetts,    in    the    case    of    Taft    v.  355,   359.      See   also   Hawkinson   v. 

Stoddard,  142  Mass.  545,    550,    that  Banaghan,  203  Mass.  591,  89  N.  E. 

the  same  principle  is  applied  when  a  1054. 
bill   to    redeem    is   brought   by   one 


§    1176]  REDEMPTION.  1571 

redemption  may  be  had  upon  payment  of  the  mortgage  that 
is  dueJ* 

§  1176.  Mode  of  payment  and  effect. — A  redemption 
of  a  mortgage,  either  before  or  after  foreclosure,  can  be 
effected  only  by  a  satisfaction  of  the  debt  secured  together 
with  interest  and  costs.'^  The  money  required  to  redeem 
from  a  mortgage  must  be  paid  either  to  the  party  holding 
the  mortgage  or  to  the  officer  provided  by  the  statute.  In 
many  of  the  states  the  law  officer  to  whom  the  money  is  to 
be  paid  is  made  by  the  statute  the  sheriff  in  whose  hands 
the  execution  is  placed  or  by  whom  the  same  was  made ;  ''^ 
and  such  sheriff,  in  receiving  the  money  for  redemption,  acts 
as  an  officer  of  the  law  and  not  as  agent  of  the  party  who 
purchased  at  the  sale,''  notwithstanding  the  general  rule  that 
a  sheriff  becomes  the  agent  of  the  plaintiff  to  receive  payment 
of  judgment  when  an  operative  execution  comes  into  his 
hands,  and  his  authority  in  the  premises  continues  while  the 
writ  remains  in  force.'^  Where  an  officer  is  provided  to  re- 
ceive the  funds  on  redemption,  to  effect  that  purpose  payment 
must  be  made  to  the  officer  designated.  Thus  it  has  been  said 
that  under  the  system  of  the  United  States  courts,  payment  of 
money  into  the  hands  of  the  sheriff  is  not  a  redemption  of  the 
premises  sold  under  a  decree  of  foreclosure  passed  by  that 
court,  when  the  United  States  court  has,  by  its  rules,  provided 
that  the  redemption  money  shall  be  paid  to  its  clerk.'^ 

''^  Lams  on  v.   Sutherland,   13   Vt.  the  statute.     He  has  no  right  to  arr 

309.  accounting  for  the  rents  and  profits. 

''^Fogal  V.  Piro,  17  Abb.  (N.  Y.)  Thompson       v.       Otsego       County 

Pr.  113.  Comm'rs,  16  Hun  (N.  Y.)  86.   This 

'6  Under  the   New  York  statute,  statute  (1837  Ch.  150)  was  repealed 

1837,    c.    ISO,    §    33,— requiring    one  in    1897  by   §    110,   Ch.  413    (State 

who  has  given  a  mortgage  to  the  Finance  Law  §  110). 

loan    commissioners    of    the    U.    S  '^  Norton  v.  Moffitt,  14  Minn.  289, 

Deposit  Fund  to  pay  the  principal  1(X)  Am.  Dec.  222. 

and  interest  to  the  first  Tuesday  of  '^  Harris  v.  Ellis,  30  Tex.  4,  94 

October — he  cannot  redeem  without  Am.  Dec.  296. 

strict  compliance  with  the  terms  of  '^  Connecticut   Mutual    Life   Ins. 


1572 


MORTGAGE    FORECLOSURES. 


[§  1177 


§  1177.  Tender  on  redemption.— A  tender  of  the 
amount  due  on  the  mortgage  is  generally  regarded  as  an 
essential  to  redemption,^"  and  the  party  seeking  to  redeem 
must  offer  to  pay  the  whole  mortgage  debt  due,  and  not 
merely  the  sum  for  which  the  land  sold,  where  it  brought 
less   than   the   full   amount  of  the   mortgage   debt,   together 


Co.  V.  Crawford,  21  Fed.  231.  In 
this  case  the  court  say:  "In  July, 
1878,  long  prior  to  the  proceedings 
in  question,  this  court  adopted  cer- 
tain rules  for  regulating  the  re- 
demption from  sales  in  this  court, 
in  cases  where  redemption  is  al- 
lowed by  the  statute  of  the  State 
of  Illinois.  These  rules  were  adopt- 
ed in  accordance  with  the  sugges- 
tion made  by  the  supreme  court 
of  the  United  States,  in  Brine 
V.  Ins.  Co.  96  U.  S.  627,  and  they 
have  since  been  confirmed  in  the 
case  of  the  Connecticut  Mut.  Life 
Ins.  Co.  V.  Cushman,  108  U.  S.  56,  2 
Sup.  Ct.  Rep.  236;  and  the  court 
there  holds,  in  substance,  that  it  is 
not  only  within  the  power,  but  it  is 
the  duty,  of  the  federal  court,  when 
rights  are  given  by  a  state  statute, 
to  adjust  the  practice  of  the  court 
by  its  rules,  so  as  to  secure  and  pro- 
tect the  property  rights  given  by 
the  statute.  In  the  same  case  it  is 
also  held  that  the  rules  adopted  by 
this  court  were  within  the  scope  and 
power  of  the  court,  and  such  it  was 
not  only  the  right  but  the  duty  of 
the  court  to  adopt.  This  court,  by 
the  rules  of  1878,  provided  that  re- 
demption should  be  made  by  a 
judgment  creditor  from  a  sale  under 
a  judgment  or  decree  of  this  court, 
by  the  creditor  suing  out  his  execu- 
tion in  the  ordinary  manner  on  his 
judgment,  placing  his  execution  in 
the  hands  of  the  proper  officer  to 


execute,  and  paying  the  money 
needed  to  redeem  into  the  hands 
of  the  clerk  of  this  court,  together 
with  the  commissions  of  the  clerk 
for  receiving  and  paying  out  the 
money.  The  redeeming  creditor  in 
this  case  ignored  these  rules,  and 
uridertook  to  make  a  redemption  by 
paying  his  money  to  an  officer  not 
known  to  this  court,  and  not  with- 
in its  control,  and  with  whom  the 
court  had  no  relations  whatever,  and 
with  whom,  it  seems  to  me,  it  is 
not  in  the  power  of  the  redeeming 
or  judgment  creditor  to  bring  the 
complainant  or  this  court  into  rela- 
tions. The  complainant,  being  a 
non-resident  corporation,  had  a 
right  to  seek  this  forum  as  the  one 
through  which  it  would  enforce  its 
lien  on  these  lots,  and  was  not 
obliged  to  look  to  any  state  court 
or  its  officers  for  the  purpose  of  ob- 
taining the  money,  after  this  court 
had  made  the  rules  of  procedure." 
*"  Horn  V.  Indianapolis  National 
Bank,  125  Ind.  381,  25  N.  E.  558,  9 
L.R.A.  676,  21  Am.  St.  Rep.  231. 
See  Dayton  v.  Dayton,  68  Mich. 
437,  Z6  N.  W.  209;  Still  v.  Buz^ell, 
60  Vt.  478,  12  Atl.  209,  644;  Kopper 
V.  Dyer,  59  Vt.  477,  59  Am.  Rep. 
742,  9  Atl.  4;  Lumsden  v.  Manson, 
96  Me.  375,  52  Atl.  783;  Hamil  v. 
Copeland,  26  Colo.  178,  56  Pac.  901. 
See  Erickson  v.  Thelin,  26  S.  D. 
441,  128  N.  W.  598;  Bean  v.  Pearce, 
151  Ala.   165,  44  So.  83;   Tyson  v. 


1177] 


REDEMPTION. 


1573 


with  interest  and  costs. ®^  The  rule  that  the  lien  of  the 
mortgage  cannot  be  discharged  either  in  whole  or  in  part 
by  a  tender  of  less  than  the  whole  amount  due  thereon,  is 
not  affected  by  the  fact  that  only  a  portion  of  the  amount 
due  belongs  to  the  holder  of  the  mortgage,  and  the  balance 
thereof  to  some  other  person,  for  where  such  holder  acts  as 
trustee,*^  where  a  junior  lienor  or  other  person  in  interest 
seeks  to  redeem  from  a  prior  mortgagee,  he  must  make  a 
tender  in  such  unmistakable  terms  that  there  can  be  no  doubt 
of  the  intention  to  satisfy  and  discharge  the  senior  mortgage, 
not  to  redeem  for  a  transfer  of  it.®^    And  where  it  is  the  design 


Chestnut,  118  Ala.  387,  24  So.  73; 
Effect  of  tender,  see  Leet  v.  Arm- 
bruster,  143  Cal.  663,  77  Pac.  653. 

Tender  to  the  wrong  party  is  in- 
sufficient. Daggs  v.  Wilson,  6 
Ariz.  388,  59  Pac.  150. 

As  to  keeping  tender  good  see 
Dickerson  v.  Simmons,  141  N.  C. 
325,  53  S.  E.  850;  Iowa  Loan  & 
Trust  Co.  V.  Kunsch,  135  N.  W.  426 
(Iowa). 

In  some  states  the  money  must  be 
deposited  in  court.  Murphree  v. 
Summcrlin,  114  Ala.  54,  21  So.  470; 
Lewis  V.  McBride,  57  So.  705  ;  Given 
V.  Troxel.  39  So.  578  (Ala.)  ;  Long 
V.  Slade  &  Farrish,  121  Ala.  267.  26 
So.  31 ;  Iowa  Loan  &  Trust  Co.  v. 
Kunsch,  135  N.  W.  426.  See  Brown 
V.  Wentworth,  181  Mass.  49,  62  N. 
E.  984.  See  also  Dunn  v.  Hunt,  76 
Minn.  196,  78  N.  W.  1110.  But  see 
Hammett  v.  White.  128  Ala.  380,  29 
So.  547.  While  in  Texas  and  Mis- 
souri the  money  need  not  be  de- 
posited in  court.  Burks  v.  Burks, 
141  S.  W.  Z2,7  (Tex.)  ;  Potter  v. 
Schaffer,  209  Mo.  586,  108  S.  W.  60. 

81  Wood  V.  Holland.  53  Ark.  69. 
13  S.  W.  739;  Horn  v.  Indianahnli': 
National  Bank,  125  Ind.  381,  23  N. 


E.  558,  9  L.R.A.  676,  21  Am.  St. 
Rep.  231;  Shannon  v.  Hay,  106  Ind. 
589,  7  N.  E.  376;  Rodriguez  v. 
Hayes,  76  Tex.  225,  13  S.  W.  296. 
See  post,  §  1191. 

In  Indiana  where  a  mortgagor 
seeks  to  have  his  title  quieted 
against  the  purchaser  at  foreclosure 
sale,  he  must  show  that  he  has  paid 
or  tendered  to  the  purchaser  the 
amount  paid  by  him  in  satisfaction 
of  the  mortgage,  debt,  before  he 
can  avail  himself  of  any  illegality 
in  the  sale.  Shannon  v.  Hay,  106 
Ind.  589,  7  N.  E.  376. 

82  Graham  v.  Lanham,  50  N.  Y. 
547. 

83  Ferguson  v.  Wagner,  41  Ind. 
450;  Benton  v.  Hatch,  122  N.  Y. 
329,  25  N.  E.  486;  Clark  v.  Mackin, 
95  N.  Y.  345.  351 ;  Twombly  v.  Cas- 
sidy.  82  N.  Y.  155;  Frost  v.  Yonk- 
ers  Sai:  Bank,  70  N.  Y.  553,  26  .\m. 
Rep.  627 ;  Cole  v.  Malcolm,  66  N.  Y. 
363.  See  Lumsden  v.  Manson,  96 
Me.  357,  52  Atl.  783;  Fields  v. 
Danenhower,  65  Ark.  392,  46  S.  W. 
938,  43  L.R.A.  519.  See  also 
Harden  v.  Collins,  138  Ala.  399.  100 
Am.  St.  Rep.  42.  35  So.  357. 

Thus  in  a  case  where  a  party  bor- 


1574  MORTGAGE    FORECLOSURES.  [§    1177 

of  the  parties  to  redeem  but  a  portion  of  the  property  sold  on 
the  foreclosure  of  a  senior  mortgage,  there  must  be  a  tender 
of  the  entire  amount  of  the  senior  mortgage  debt.^* 

The  supreme  court  of  Texas,  in  the  case  of  Rodriguez  v. 
Hayes,^^  say  that  where  a  mortgagee  is  placed  in  possession 
under  the  mortgage  and  entitled  to  retain  it,  the  mortgagor 
cannot  recover  possession  after  condition  broken,  without 
discharging  the  debt,  although  the  latter  is  barred  by  limita- 
tion. 

There  are  circumstances  under  which  a  tender  of  the 
amount  due  on  a  mortgage  need  not  be  made  by  a  person 
seeking  to  redeem. ^^  Thus  it  has  been  said  that  a  tender  of 
the  amount  due  a  senior  lienholder  in  possession  of  his 
debtor's  property  under  a  judicial  sale  is  excused  in  favor  of 
a  junior  lienholder  seeking  to  redeem  the  property,  where 
the  former  has  money  in  his  hands  exceeding  the  amount  of 
his  claim,  which  he  is  equitably  bound  to  apply  in  discharge 
thereof."  In  some  of  the  states  a  tender  is  not  necessary  in 
redemption  proceedings.  Thus  the  supreme  court  of  Mis- 
souri, in  the  case  of  Kline  v.  Vogel,®^  say  it  is  unnecessary 
for  the  mortgagor  to  make  a  tender  before  seeking  to  compel 
redemption;  all   that   is   necessary   is   that  he   pay   the   sum 

rowed    $1,000    upon    a    note,    and  lin,  20   Iowa,    101;    Street  v.  Beal, 

also  offered  a  mortgage  to  secure  16  Iowa,  68,  85  Am.  Dec.  504;  White 

the  note,  and  on  the  appointed  day  v.  Hampton,   13  Iowa,  259;  Heim- 

for  redemption  took  the  money  and  street  v.  Winne,  10  Iowa,  430. 

said  in  effect  to  the  mortgagee,  "I  85  75  fex.  225,  13  S.  W.  296. 

will  pay  you  this  money  if  you  will  ^6  See    DeLeonis    v.     Walsh,    as 

first  transfer  the  mortgage  and  the  adin'r,  etc.  140  Cal.  175,  7Z  Pac.  813 ; 

note  to  a  third  person;   the  court  Anstv.Rosenbaum,7A'M.\?,s.WZ,2\ 

held  that  such  an  offer  was  not  a  So.  555;    Taylor  v.  Dillenberg,   168 

tender,    but    a    mere    overture,    a  111.    235,    48    N.    E.    41 ;    Nestor   v. 

proposition    which    the    mortgagee  Davis,  100  Miss.  199,  56  So.  347. 

might  accept  or  not,  as  he  saw  fit,  ^"^  Horn  v.  Indianapolis  Nat.  Bk. 

and  that  his  foreclosure  was  valid.  125  Ind.  381,  25  N.  E.  558,  9  L.R.A. 

Ferguson  v.  Wagner,  41  Ind.  450.  676,  21  Am.  St.  Rep.  231. 

84  See   Smith  v.   Shay,  62   Iowa,  88  90  Mo.  239,  2  S.  W.  408. 
119,  17  N.  W.  444;  Knowles  v.  Rab- 


§  1179] 


REDEMPTION. 


1575 


found  by  the  court  to  be  due,  within  the  time  limited  by  the 
decree.^^ 

§  1178.  Usurious  and  compound  interest. — The  person 
seeking  to  redeem  from  a  mortgage  is  not  required  to  pay 
usurious  or  compound  interest,  although  the  note  secured  by 
the  mortgage  may  in  terms  require  it.^°  Thus  in  a  case  where 
the  original  mortgagor,  in  a  mortgage  given  to  secure  a  note 
with  interest  payable  annually,  gave  a  second  note  for  the 
interest  computed  annually,  the  court  said  the  mortgagor 
might  redeem  upon  payment  of  the  original  note  and  simple 
interest.^^  In  those  cases  where  usurious  interest  is  reserved, 
the  fact  may  be  pleaded  in  the  bill  to  redeem  and  the  party 
will  be  entitled  to  have  an  allowance  made  him  of  the  statu- 
tory penalty  for  unpaid  interest,  and  a  deduction  thereof  from 
the  sum  payable  to  mortgagee  to  redeem;  but  he  will  not  be 
entitled  to  an  allowance  for  usurious  interest  paid  by  a  former 
owner  of  the  equity.'^ 

§  1179.  Redeeming  whole  of  mortgaged  land. — We 
have  already  seen  that  where  a  person  seeks  to  redeem  from 
a  mortgage,  he  must  pay  the  full  amount  of  the  debt  and 
comply  with  the  covenants  and  conditions  in  the  instrument. ^^ 
This  applies  equally  to  persons  holding  the  entire  equity,  and 


89  See  Owen  v.  Blake,  44  III.  135 ; 
Barnard  v.  Cttshman,  35  111.  481; 
Reeves  v.  Cooper,  12  N.  J.  Eq.  (1 
Beas.)  223;  Parsons  v.  Parsons,  9 
N.  H.  336,  32  Am.  Dec.  362. 

^'^  Park  hurst  v.  Cuninii)igs,  56  Me. 
155.  See  First  National  Bank  v. 
Clark.  161  Ala.  497,  49  So.  807. 

91  Parkhurst  v.  Cummings,  56  Me. 
155. 

92  See  Adams  v.  McKenzie,  18 
Ala.  698;  Gerrish  v.  Black,  104 
Mas.s.  400;  Smith  v.  Robinson,  92 
Mass.    (10    Allen)     130;    Minot    v. 


Sawyer,   90    Mass.    (8    Allen)    78; 
Drnry  v.   Morse,  85  Mass.    (3  Al- 
len)   445;    Hart    v.    Goldsmith,   83 
Mass.  (1  Allen)   145;  Butter  field  v. 
Kidder,   25    Mass.    (8    Pick.)    512 
Kirkpatrick  v.  Smith,  55  Mo.  389 
Perrine    v.    Paulson,    53    Mo.    309 
Fanning   v.    Dunham,   5    John.    Ch 
(N.  Y.)   122,  145,  9  Am.  Dec.  283 
Eaglcson  v.  Shotwcll,  1   John.   Ch. 
(N.  Y.)  536;  Rufus  v.  Rathburn.  1 
John.  Ch.    (X.  Y.)   367;  Henkle  v. 
Royal  Exch.  Asso.  Co.  1  Vern.  320. 
93  See  ante,  %  1024  et  seq. 


1576  MORTGAGE    FORECLOSURES.  [§     1180 

to  those  who  hold  only  an  undivided  portion  of  a  lot  or  tract 
of  land.^*  On  payment  of  the  whole  debt  the  party  redeeming 
is  subrogated  to  the  interest  of  the  holder  of  the  mortgage,^^ 
and  cannot  compel  contribution  from  all  others  interested  in 
the  mortgaged  land.^^ 

It  is  said  that,  in  order  to  be  able  to  redeem  from  a  mort- 
gage on  the  property  of  a  railroad  company,  lying  in  different 
states,  the  entire  mortgage  must  be  redeemed,  for  the  reason 
that  the  mortgagee  has  a  lien  upon  every  part  of  the  railroad  to 
secure  every  part  of  his  mortgage  debt.^' 

§  1180.  Redeeming  but  part  of  mortgaged  land. — We 

have  already  seen  that  the  general  rule  is  that  a  person  seek- 
ing to  redeem,  either  before  ^*  or  after  ^^  maturity,  or  after 
foreclosure,^  must  pay  the  full  amount  of  the  mortgage  debt." 
and  redeem  the  whole  of  the  mortgaged  land;'  but  to  this 
general  rule  there  are  certain  well-defined  exceptions  that 
exist  under  special  circumstances,  which  would  make  the 
enforcement  of  the  rule  inequitable.  Thus,  where  the  mort- 
gage has  been  foreclosed  and  the  land  purchased  by  the 
holder  of  the  mortgage,  without  making  all  the  persons  inter- 
ested parties  to  the  suit,*  the  owner  of  a  portion  of  the  mort- 
gaged premises  not  made  a  party  is  entitled  to  redeem  his  por- 
tion of  the  mortgaged  premises  on  paying  the  proportionate 
amount  of  the  mortgage  debt  his  portion  of  the  land  should 
bear.*    The  reason  for  this  exception  is  that  the  holder  of  the 

^'^  Buettel  V.  Harmount,  46  Minn.  9'  Wood  v.  Goodwin,  49  Me.  260, 

481,  49  N.  W.  250.     See  Calkins  v.  77  Am.  Dec.  259. 

Mansel,2  Root  (Conn.)  333;  John-  ^^  See  ante,  §   1136. 

son  V.  Handage,  31  Me.  28;  Merritt  ^^  See  ante.  §   1137. 

V.    Hosmer,    77    Mass.    (11    Gray)  ^  See  oh^^,  §§  1139,  1173. 

276,   71    Am.    Dec.   713;    Gibson   v.  2  See  ante,  §  1171. 

Crehore,  22   Mass.    (5   Pick.)    152;  3  See  ante,  §  1179. 

Taylor   v.    Bassett,   3    N.    H.    290;  ^  As  to  rights  of   interested  per- 

Palk  V.  Clinton,  12  Ves.  59,  8  Rev.  sons  not  made  parties  to  an  action 

283.  to  foreclose.     See  ante,  §  1056. 

95  See  ante,  §   1102.  ^  Green  v.  Dixon,  9  Wis.  532. 

96  See  post,  §  1208  et  seq. 


§     1180]  REDEMPTION.  1577 

mortgage,  by  such  a  foreclosure,  sale  and  purchase,  volun- 
tarily severs  his  right  to  receive  the  whole  of  the  mortgage 
debt,®  and  to  have  the  whole  of  the  mortgaged  premises  re- 
deemed,''  obtaining  an  indefeasible  title  to  such  part  of  the 
mortgaged  premises  as  the  owners  there  were  duly  made 
parties  to  the  proceedings,  and  a  defeasible  title  as  to  that  por- 
tion the  owners  of  which  were  not  made  parties.* 

Another  exception  to  the  general  rule,  is  in  those  cases 
where  one  takes  a  deed  of  warranty  to  a  portion  of  a  mort- 
gaged tract  of  land,  and  the  remaining  portion  of  the  land  is 
sufficient  to  satisfy  the  mortgage  debt  in  full.  Under  these 
circumstances,  the  purchaser  of  such  portion  may  maintain 
a  bill  in  equity  to  redeem  the  portion  purchased  against  a 
subsequent  assignee  of  the  mortgage,  without  contribution,^ 
although  such  assignee  may  have  become  the  owner  of  the 
equity  of  redemption  of  the  remaining  portion  of  the  land.^° 

Another  exception  to  the  general  rule,  evidently  based  upon 
grounds  of  public  policy,  is  the  right  of  a  railroad  company, 
which  has  taken  for  its  uses  land  upon  which  there  is  a  mort- 
gage or  other  prior  lien,  to  redeem  from  such  mortgage  or 
prior  lien  the  lands  appropriated  to  its  use  upon  paying  a 
ratable  proportion  of  the  mortgage  debt.^^  which  it  must  do 
to  the  full  value  of  the  property,  if  need  be.  irrespective  of 
improvements  put  thereon  by  the  railroad  company. ^^ 

6  See  ante.  §  1171.  len)    16;    Chare   v.    Woodbury.   60 

'See  ante,  §  1179.  Mass.    (6  Cush.)    143;  Parkham   v. 

8  See  Jones  on  Mortg.   (4th  ed.)  Welch,   36   Mass.    (19    Pick.)    231; 

§  1074.  Hedge    v.    Holmes.    27    Mass.     (10 

^  See /»05^  cliap.  xliv.  Pick.)   380;    Amory    v.    Fairbanks, 

^^  Bradley  v.  George,  84  Mass.  (2  3  Mass.  562;  Newall  v.   Wright.  3 

Allen)   392.     See  Dooley  v.  Potter,  Mass.  138,  150,  3  Am.  Dec.  98. 

140    Mass.   49,   59;    Beard   v.   Fitz-  ^"^  Dows  \.  Congdon,  \6  Kow.  (X. 

gerald,    105    Mass.    134;    George   v.  Y.)    Pr.   571.     See   North   Hudson 

Wood.  93  Mass.    (11  Allen)  43,  91  County  R.   Co.  v.  Booraem.  28   N. 

Mass.  (9  Allen)  80,  82,  85  Am.  Dec.  J.  Eq.   (1  Stew.)  593. 

741;   Kilburn  v.  Robbins,  90  Mass.  ^^  Dows    v.    Congdon,    16    How. 

(8  Aliens  466.  470;  Welch  v.  Beers,  (N.  Y.)  Pr.  571;  Aspinwall  v.  Chi- 

90     Mass.     (8     Allen)     151,     152;  cago  &  N.  W.  R.  Co.  41  Wis.  474. 

George   v.   Kent,  89   Mass.    (7   Al- 


1578  MORTGAGE    FORECLOSURES.  [§    1181 

And  where  mortgaged  property  is  sold  in  parcels  the  mort- 
gagor may  redeem  one  of  the  parcels  at  the  price  paid  there- 
for at  the  sale,  with  interest,  taxes  and  costs  added,  without 
paying  the  amount  realized  from  the  sale  of  the  entire  mort- 
gaged premises.^' 

§  1181.  Requiring  reconveyance  of  other  titles. — On  a 

redemption  a  mortgagor,  or  those  claiming  under  him,  can- 
not require  the  reconveyance  of  more  than  passed  by  the 
mortgage  deed.  Such  redemptioner  certainly  cannot  obtain 
or  require  in  such  a  reconveyance  any  adverse  or  superior  title 
subsequently  and  in  good  faith  acquired  by  the  mortgagee  or 
his  assignee,  and  the  reconveyance  from  the  mortgagee  or  his 
assignee  should,  therefore,  be  limited  to  the  interest  conveyed 
by  the  mortgage  deed.-'*  In  the  case  of  Roberts  v.  Fleming," 
a  mortgagee,  under  a  power  in  the  mortgage,  sold  the  premises 
and  improperly  himself  became  the  purchaser  indirectly. 
Subsequently,  and  while  in  possession  under  his  purchase,  he 
acquired  an  outstanding  title  to  a  portion  of  the  mortgaged 
premises,  which  had  been  sold  under  a  prior  judgment  lien.  On 
bill  brought  to  redeem  it  was  held  that  he  should  be  allowed 
the  amount  of  his  mortgage  debt  and  interest,  all  taxes  paid 
upon  the  land,  and  all  reasonable  repairs,  as  well  as  necessary 
and  permanent  improvements,  made  prior  to  filing  the  bill  to 
redeem ;  but  that  he  should  not  be  allowed  the  amount  he  paid 
for  outstanding  title,  or  be  charged  with  rents  and  profits  ^^ 
received,  or  which  might  have  been  received  by  reasonable 
effort  and  proper  management  of  the  property." 

^^  State  ex  r'el.  Tzviss  v.  Carpen-  ^^  Roberts  v.  Fleming,  53  111.  196. 

ler,  as  sheriff,  etc.  19  Wash.  378,  S3  As  to  rents  and  profits,  see  full 

Pac.  342.  discussion,  post,  §  1183. 

^^Hall  V.  Arnott,  80  Cal.  348,  22  ^^  Roberts  v.  Fleming,  53  111.  196. 

Pac.  200.  See   also   Eldriedge  v.   Hoefer,   52 

15  53  111.  196.  Or.  241,  96  Pac.  1105. 


§  1183] 


REDEMPTION. 


1579 


§  1182.  Repairs — Allowance  for  on  redemption. — The 
cost  of  repairs  necessarily  made  ^^  and  improvements,^^  rea- 
sonable in  their  character,  and  beneficial  to  the  estate,  made  in 
good  faith,  should  be  allowed  for  on  redemption.^"  Thus  it 
has  been  said  by  the  supreme  court  of  Alissouri,  in  the  case  of 
Stevenson  v.  Edwards,^^  that  persons  who  have  a  remainder 
under  a  deed  which  has  been  declared  void  as  to  creditors  and 
purchasers,  but  valid  as  between  the  parties  thereto,  may  bring 
suit  to  redeem  the  land  from  the  lien  of  deeds  of  trust  executed 
by  the  life  tenant,  though  the  land  has  been  sold  thereunder, 
but  must  allow  the  purchaser  under  such  sale  the  cost  of  all 
necessary  expenses  and  repairs. 

§  1183.  Rents  and  profits — Accounting  for. — A  pur- 
chaser at  a  foreclosure  sale  is  not  usually  required  to  account 
for  rents  and  profits,  especially  where  such  purchaser  is 
other  than  the  mortgagee,^^  except  in  those  cases  where  the 


18  Whetstone  v.  McQueen,  137 
Ala.  301,  34  So.  229.  See  Ameri- 
can Freehold  Land  Mortgage  Co. 
V.  Pollard,  132  Ala.  155,  32  So.  630. 

19  See  post,  §   1189. 

'io  Lynch  v.  Ryan,  137  Wis.  13, 
129  Am.  St.  Rep.  1040,  118  N.  W. 
174. 

21 98  Mo.  622,  12  S.  W.  255. 

22  See  Roberts  v.  Fleming,  53  111. 
196;  Gaskell  v.  Viquesney,  122  Ind. 
244,  17  Am.  St.  Rep.  364,  23  N.  E. 
791 ;  Harrison  v.  Edwards,  98  Mo. 
622,  12  S.  W.  255;  Higinbotham  v. 
Benson,  24  Neb.  461,  39  N.  W.  418, 
8  Am.  St.  Rep.  211;  Renard  v. 
Brown,  7  Neb.  449;  American  Free- 
hold Land  Mortgage  Co.  v.  Pollard, 
132  Ala.  155.  22  So.  630;  Ruprecht  v. 
Henrici,  127  111.  App.  350.  See  also 
Shelley  as  ex'r,  etc.  v.  Cody,  187 
N.  Y.  166,  79  N.  E.  994;  Potter  v. 
ShaSer,  209  Mo.  586.  108  S.  W.  60. 

In  the  case  of  Roberts  v.  Flem- 


ing, 53  111.  196,  a  mortgagee,  under 
a  power  in  the  mortgage,  sold  the 
premises,  but  improperly  became 
the  purchaser  himself,  indirectly. 
Subsequently,  and  while  in  posses- 
sion, he  purchased  in  the  outstand- 
ing title  to  a  portion  of  the  mort- 
gaged premises,  which  had  been 
sold  under  a  prior  judgment  lien. 
The  mortgage  bore  date  of  July  30, 
1858,  and  his  sale  was  made  De- 
cember, 1860.  In  January,  1865,  a 
bill  was  filed  to  redeem.  The  court 
held  that  redemption  should  be  al- 
lowed on  these  terms :  The  mort- 
gagee to  be  allowed  the  amount  of 
his  mortgage  debt,  and  interest,  all 
taxes  paid  upon  the  lands,  and  all 
reasonable  repairs,  and,  on  account 
of  the  delay  in  filing  the  bill  to  re- 
deem, for  necessary  and  permanent 
improvements,  made  prior  to  the  fil- 
ing of  the  bill.  He  should  be 
charged  with  the  amount  bid  at  the 


1580  MORTGAGE    FORECLOSURES.  [§    1184 

possession  was  not  only  wrongfully  taken  by  the  mortgagee, 
but  accompanied  by  force  and  fraud,  in  which  case  the  mort- 
gagee, on  a  suit  to  redeem,  cannot  be  charged  with  less  than 
the  whole  rental  value  during  his  possession ;  ^^  and  it  has  even 
been  said  that  a  mortgagee  who  purchases  the  premises  on  a 
foreclosure  sale,  and  takes  possession  in  the  capacity  of  owner, 
is  not  liable  to  account  for  rents  and  profits  on  a  redemption.^* 
But  it  has  been  said  that  a  junior  incumbrancer  on  redemption 
can  compel  a  senior  mortgagee  who  has  been  in  possession,  to 
account  for  rents  and  profits,  in  the  same  manner  that  the 
mortgagor  could  do  so.^^  And  it  is  held  that  in  a  suit  by  a  re- 
mainderman to  redeem  lands  mortgaged  by  the  life  tenant,  the 
mortgagee  must  account  for  all  rents  received  by  him;  and 
it  is  no  defense  that  he  has  paid  a  part  of  them  to  the  life  ten- 
ant."^' 

§  1184.  Payment  of  costs  of  suit. — The  question  of 
costs  on  a  bill  brought  to  redeem  has  already  been  partially 
discussed,^'  and  will  hereafter  ^*  receive  fuller  consideration. 

It  is  a  universal  rule  that  a  mortgagor  who  waits  until  after 
the  advertisement  of  the  property  for  sale  before  filing  his 
bill  to  redeem,  although  notified  several  months  before  that 
the  property  was  advertised  for  sale  under  a  power  in  the 
mortgage,  will  be  required  to  pay  the  costs  of  advertising.^ 

mortgage    sale    upon    that    portion  24  Gaskell  v.  Viquesney,  122  Ind. 

of  the  lands  to  which  he  acquired  244,  17  Am.  St.  Rep.  364,  23  N.  E. 

the  outstanding  title,  but  not  with  791. 

the   rents  and   profits  thereof,   nor  26  Gaskell  v.   Viquesney,  122  Ind. 

should  he  be  allowed  the   amount  244,  17  Am.  St.  Rep.  364,  23  N.  E. 

paid  for  the  outstanding  title.  Upon  791. 

the  residue  of  the  mortgaged  prem-  ^6  Stevensoji  v.  Edwards,  98  Mo. 

ises,  he  should  be  charged  with  the  622,  12  S.  VV.  255. 

rents  and  profits  received,  or  which  ^7  Sg^  ante,  §  1161. 

might   have  been   received  by   rea-  ^8  gee  post.  §   1243. 

sonable  effort  and  proper  manage-  ^9  Means   v.    Anderson,    19   R.    I. 

ment  of  the  property.  118,  32  At).  82. 

Z3  Meigs   v.    McFarlan,   72    Mich. 
194.  40  N.  W.  246. 


1185] 


REDEMPTION. 


1581 


And  a  junior  mortgagee  redeeming  from  a  foreclosure  by  a 
senior  mortgagee,  will  usually  be  requested  to  pay  the  costs 
of  foreclosure  and  sale,*"  except  in  those  cases  where  he  has 
not  been  made  a  party  to  the  action  to  foreclose  the  senior 
mortgage.'^ 

§  1185.  Taxes  and  assessments  and  disbursements. — 

The  universal  rule  is  that  mortgaged  property,  notwithstand- 
ing the  mortgage,  is  liable  for  the  taxes  and  assessments  duly 
and  regularly  assessed  and  levied.^^  Consequently  where  a 
party,  by  way  of  cross-bill  or  otherwise,  seeks  to  redeem  the 
whole  or  a  portion  of  the  pledged  premises,  he  will  be  re- 
quired to  pay  the  whole  or  a  proportionate  amount  of  the  valid 
taxes  and  assessments  which  have  been  paid  to  protect  the 
property  and  the  lien  thereon,  notwithstanding  the  mortgage 
does  not  especially  so  provide.^^    But  whether  the  money  paid 


3"  Stanbrough  v.  Daniels,  77  Iowa, 
561,  42  N.  W.  443. 

^1  Gaskell  V.  Viquesney,  122  Ind. 
244,  17  Am.  St.  Rep.  364,  23  N.  E. 
791;  Page  v.  Brewster,  31  N.  Y. 
218;  Jones  v.  Dutch,  3  Neb. 
(Unof.)  673,  92  N.  W.  735.  See 
ante,  755. 

^^  Lynch  v.  Ryan,  137  Wis.  13, 
129  Am.  St.  Rep.  1040,  118  N.  W. 
174.  See  Kelso  v.  Norton,  74  Kan. 
442,  87  Pac.  184. 

^^  Saunders  v.  Peck,  131  111.  407. 
25  N.  E.  508,  revers'g  30  111.  App. 
238;  Miner  v.  Beekman,  50  N.  Y. 
337.  See  Broquet  v.  Sterling,  56 
Iowa,  357,  9  N.  W.  301 ;  Strong  v. 
Burdick,  52  Iowa,  630,  3  N.  W.  707 , 
Williams  v.  Hilton,  35  Me.  547,  58 
Am.  Dec.  729;  Walton  v.  Holly- 
wood, 47  Mich.  385,  11  N.  W.  209; 
Nopson  V.  Horton,  20  Minn.  268; 
Manning  v.  Tuthill,  30  N.  J.  Eq.  (5 
Stew.)  29;  Sidenberg  v.  Ely,  90  N. 
Y.  257,  43  Am.  Rep.  163;  Robinson 


V.  Ryan,  25  N.  Y.  320,  327 ;  Madison 
Ave.  Church  v.  Oliver  St.  Church, 
41  N.  Y.  Supr.  Ct.  383;  Fleishauer 
V.  Doellner,  9  Abb.  (N.  Y.)  N.  C. 
372;  Kortright  v.  Cady,  23  Barb. 
(N.  Y.)  490;  Dale  v.  McEvers,  2 
Cow.  (N.  Y.)  118;  Eagle  F.  Ins. 
Co.  V.  Pell,  2  Edw.  Ch.  (N.  Y.) 
631;  Rapelye  v.  Prince,  4  Hill  (N. 
Y.)  119,  40  Am.  Dec.  267;  Fauer  v. 
Winans,  1  Hopk.  Ch.  (N.  Y.)  283. 
14  Am.  Dec.  545 ;  Brevoort  v.  Ran- 
dolph, 7  How.  (N.  Y.)  Pr.  398; 
Weed  V.  Hornby,  35  Hun  (N.  Y.) 
582;  Silver  Lake  Bank  v.  North, 
4  John.  Ch.  (N.  Y.)  370;  Burr  v. 
Veeder,  3  Wend.  (N.  Y.)  412; 
Goldbeck's  Appeal,  4  Sadler  (Pa.) 
488.  8  Atl.  29;  Stillmait  v. 
Rosenberg,  78  N.  W.  913  (Iowa)  ; 
Dubois  V.  Bowles,  30  Colo.  44.  69 
Pac.  1067.  See  Crummctt  v.  Little- 
field,  98  Me.  317,  56  Atl.  1053.  But 
see  McAbee  v.  Harrison,  50  S.  C. 


1582  MORTGAGE    FORECLOSURES.  [§    1185 

to  redeem  the  mortgaged  premises  from  a  tax  sale  becomes  a 
part  of  the  mortgage  debt  and  chargeable  to  the  redemption, 
there  is  a  lack  of  harmony  in  the  authorities.  There  is  a 
strong  line  of  decisions  holding  that  the  money  so  paid  by  the 
mortgagee  or  purchaser  at  foreclosure  sale,  becomes  a  part  of 
the  mortgage  debt  in  equity,^*  especially  where  the  tax  title 
is  bought  up  to  protect  the  lien  before  the  sale  under  foreclos- 
ure,^* on  the  theory  that  if  the  tax  title  fails  the  mortgagee  or 
holder  of  the  mortgage  may  enforce  the  tax  liens  by  proceed- 
ings to  foreclose  the  same.^®  On  the  other  hand,  Mr.  Jones, 
in  his  work  on  mortgages,"  says  that  a  statutory  provision 
to  the  effect  that  the  amount  of  money  paid  in  discharge  of 
valid  taxes  and  assessments  on  the  mortgaged  lands  by  the 
mortgagee  shall  constitute  a  lien  and  be  collectible  with  the 
mortgage  debt,  does  not  entitle  the  mortgagee  to  add  to  the 
mortgage  debt  in  this  way  the  amount  paid  by  him  in  purchas- 
ing at  a  tax  sale,  alleging  that  such  a  purchase  is  not  a  pay- 
ment of  taxes,  but  a  purchase  of  a  new  lien  upon  the  estate 
independent  of  his  mortgage.  The  reason  for  such  a  rule 
is  a  little  difficult  to  ferret  out.  The  learned  author  cites 
but  one  case,  that  of  Williams  v.  Townsend,^®  but  it  is  thought 

39,  27  S.  E.  539;  Fulton  v.  Aldrich,  ing  &  Loan  Institution  v.  Richards, 

76  Vt.  310,  57  Atl.  108.  32  Ind.  App.  24,  68  N.  E.  1039. 

3*  See  Mix  v.  Hotchkiss,  14  Conn.  35  Skilton   v.   Roberts,   129   Mass. 

Z2 ;  Williams  v.  Hilton,  35  Me.  457,  306,  309. 

58     Am.     Dec.     734;     Skilton     v.  ^^  Schoenhcit  v.  Nelson,   16  Neb. 

Roberts,   129  Mass.   306;   Davis  v.  235,  20  N.   W.  205.     See  Zahrad- 

Bean,    114    Mass.    360;    Schoenheit  nicek  v.  Selby,  15  Neb.  579,  19  N. 

V.  Nelson,   16   Neb.  235,  2  N.   W.  W.  645;  Reed  v.  Merriam,  15  Neb. 

205;   Brown  v.   Simons,  44  N.   H.  323,  18  N.  W.  137;  Towle  v.  Holt, 

475;   Sidenberg   v.   Ely,  90   N.    Y.  14  Neb.  222,  15  N.  W.  203;  Miller 

257,  262,  43  Am.  Rep.  163 ;  Marshall  v.  Hurford,  13  Neb.   14,  12  N.  W. 

\.  Davis,  7^^.  Y.  AU;  Williams  \.  832;    Wilhelm    v.    Russell,   8    Neb. 

Townsend,  31  N.  Y.  414;  Robinson  120;    Pettitt   v.    Black,  8   Neb.    52; 

V.   Ryan,  25   N.   Y.   320;   Eagle  F.  Peet  v.  O'Brien,  5  Neb.  360. 

Ins.   Co.  V.  Pell,  2  Edw.   Ch.  631;  ^7  2   Jones   on   Mortg.    (4th   ed.) 

Fauer  v.  Winans,  1  Hopk.  Ch.   CN.  §  1080. 

Pr.  388;  Burr  v.   Veeder,  3  Wend.  8831  n.  Y.  411. 
(N.    Y.)    412;    Government   Build- 


§  1185] 


REDEMPTION, 


1583 


this  case  is  not  authority  for  such  a  rule.  All  that  the  court 
decide  in  that  case  is  that  where  a  mortgagee  has  a  right,  in 
default  of  the  mortgagor,  to  pay  taxes  and  assessments  and 
collect  them  as  part  of  the  mortgage  debt,  he  cannot,  by 
bidding  in  the  premises  at  a  tax  sale,  and  taking  a  certificate 
therefor,  deprive  the  mortgagor  of  the  right  given  by  statute 
to  redeem  the  sale  for  taxes.  The  application  since  made  of 
that  decision  by  the  New  York  court  of  appeals  shows  un- 
mistakably that  they  do  not  regard  it  as  announcing  the  doc- 
trine attributed  to  it.^^ 


39  Williams  v.  Townsend  has 
been  referred  to,  cited  or  distin- 
guished six  times  by  the  court  of 
appeals  of  New  York,  four  times 
on  question  of  taxes  and  twice  on 
questions  of  incumbrances. 

In  the  case  of  Oliphant  v.  Burns, 
146  N.  Y.  218,  241,  it  is  distin- 
guished and  declared  to  be  inap- 
plicable. 

In  the  case  of  People  ex  rel.  Oak- 
ley V.  Blackmann,  126  N.  Y.  310, 
317,  it  is  cited  by  Judge  Gray  in 
the  following  discussion,  "This 
court  in  the  case  of  In  re  Clementi 
V.  Jackson,  92  N.  Y.  591,  and  re- 
cently in  the  second  division,  in  the 
case  of  McFarlane  v.  City  of 
Brooklyn,  122  N.  Y.  589,  has  re- 
garded a  sale  for  unpaid  taxes  as  a 
mode  of  enforcement  of  the  city 
lien  for  taxes.  In  the  case  of  Wil- 
liams V.  Townsend,  31  N.  Y.  411, 
and  In  re  Clementi  v.  Jackson,  92 
N.  Y.  591,  the  expressions  in  the 
opinions  are  unmistakable  as  to  the 
eflfect  of  the  sale  upon  the  assess- 
ment lien  upon  property.  In  the 
former  case  Judge  Davis  holds  that 
it  is  "merely  an  assignment  of  the 
lien  of  the  tax,  *  *  *  and  that 
lien  continues  till  the  owner  makes 
the    redemption,    or   the    holder    of 


the  certificate  takes  title  to  the 
property  in  the  form  prescribed.  It 
is  therefore,  clear  that  the  tax  or 
assessment  is  not  discharged  by  that 
sale  and  certificate.  In  re  Clementi 
V.  Jackson,  Judge  Rapallo  held  that 
the  payments  made  by  the  pur- 
chaser at  a  tax  sale  were  not  pay- 
ments of  the  taxes.  He  said:  "The 
payments  made  by  him  were  no 
more  a  payment  of  the  taxes  than 
would  a  payment  he  made  by  an 
assignee  to  an  assignor  of  a  bond, 
in  consideration  of  the  assignment 
thereof,  be  a  payment  of  the 
bond.' " 

In  the  case  of  Sidenberg  v.  Ely, 
90  N.  Y.  257,  263,  43  Am.  Rep.  163, 
Judge  Miller  lays  down  the  rule 
that  "taxes  paid  may  be  added  to 
the  mortgage  debt,"  and  says, 
"numerous  cases  in  the  reports  sus- 
tain this  doctrine,"  citing  Eagle  F. 
Ins.  Co.  V.  Bell,  2  Edw.  Ch.  (N.  Y.) 
621;  Burr  v.  Veeder,  3  Wend.  (N. 
Y.)  412;  Brevoort  v.  Randolph,  7 
How.  (N.  Y.)  Pr.  398;  Fauer  v. 
Winons,  1  Hopk.  Ch.  (N.  Y.)  283, 
14  Am.  Dec.  545;  Marshall  v. 
Davies,  78  N.  Y.  414;  Robinson  v. 
Ryan,  25  N.  Y.  320,  and  Williams  v. 
Townsend,  31  N.  Y.  411,  414,  and 
adds :     "These  cases    are    cited    by 


1584 


MORTGAGE    FORECLOSURES. 


[§  1185 


The  American  and  English  Encyclopaedia  of  Law  *"  en- 
dorses the  position  of  Mr.  Jones  by  copying,  without  quo- 
tation marks,  his  exact  language,  but  cites  in  addition  to  Wil- 
liams V.  Townsend,  Vincent  v.  Moore,*^  and  Brown  v.  Sim- 
mons,*^ neither  of  which  support  the  proposition,  and  one, 
Brown  v.  Simmons,  is  an  authority  on  the  other  side.  In  the 
case  of  Vincent  v.  Moore,*^  the  supreme  court  of  Michigan 
say  that  a  mortgagee  who,  to  protect  his  mortgage,  redeems 
the  mortgaged  land  from  tax  sale,  and  subsequently  forecloses 
his  mortgage  under  the  power  of  sale,  making  no  claim  for 
the  amount  paid  for  taxes,  and  buys  in  the  land  for  the  amount 
of  the  mortgage  debt,  and  the  mortgagor  redeems  from  such 
sale,  the  mortgagee  cannot  afterwards,  by  suit  in  equity,  en- 
force a  claim  for  the  amount  paid  to  redeem  from  the  tax 
sale.  It  is  plainly  distinguishable  from  and  not  an  authority 
for  the  doctrine  to  which  it  is  cited.  In  the  case  of  Brown  v. 
Simmons,  **  it  is  said  that  a  mortgagee  in  possession,  taking 


counsel  for  the  appellant,  and  it  is 
claimed  they  do  not  sustain  the 
doctrine  contended  for.  While  all 
of  them  do  not  entirely  cover,  yet 
they  tend  to  the  support  of  the 
principle,  that  a  mortgagee,  who  to 
save  his  mortgage  and  protect  his 
security,  is  under  the  necessity  of 
paying  the  taxes  and  assessments  to 
prevent  the  property  from  being 
sold,  should  be  allowed  for  the 
same  as  a  part  of  his  mortgage  debt 
upon  the  foreclosure  of  his  mort- 
gage." 

In  Cornell  v.  Woodruff,  77  N.  Y. 
203,  206,  Williams  v.  Townsend  is 
cited  as  authority  by  Judge  Rapallo 
in  the  following  language :  "These 
certificates  of  sales  for  taxes  were 
liens  upon  the  premises  to  the 
amount  of  the  taxes,  expenses  of 
sale  and  interest  at  the  rate  allowed 
by   law,    on    such   sales.     Until    the 


time  for  redemption  expired  and  a 
lease  should  be  executed  the  lien 
continued." 

In  Ten  Eyck  v.  Craig,  62  N.  Y. 
406,  421,  Judge  Andrews  cites  Wil- 
liams V.  Townsend  as  authority  to 
the  proposition  that  "he  (the  mort- 
gagee) may  buy  in  any  outstanding 
title  and  hold  it  against  the  mort- 
gagor," citing  Cameron  v.  Irwin.  5 
Hill  (N.  Y.)  280;  Williams  v. 
Townsend,  31  N.  Y.  411,  415;  Shaw 
V.  Bonny,  13  Week.  R.  374,  2  D.  G. 
J.  &  S.  468. 

In  Lewis  v.  Duane,  141  N.  Y. 
302,  313,  Williams  v.  Townsend  is 
cited  to  a  point  in  relation  to  trusts. 

40  20  Am.  &  Ency.  of  L.  (1st  ed.) 
621. 

41  51  Mich.  618,  17  N.  W.  618, 

42  44  X.  H.  475. 

«51  Mich.  618,  17  N.  W.  618. 
44  44  N.  H.  475. 


f  1185] 


REDEMPTION. 


1585 


rents  and  profits,  can  acquire  no  title  as  against  the  mortgagor 
or  his  assignee,  by  a  purchase  of  the  land  at  the  collector's 
sale  for  the  taxes  upon  it;  but  he  may  add  the  sum  paid  for 
such  taxes  to  the  mortgage  debt  as  expenses  necessarily  in- 
curred in  protecting  the  estate.*^ 

Where  a  mortgagee  has  paid  prior  charges  and  incum- 
brances on  the  land  to  protect  his  title  *®  on  redemption  by 
the  mortgagor  or  any  one  claiming  under  him,  the  mort- 
gagee will  be  entitled  to  receive  this  as  a  part  of  the  mortgage 
debt;*'  but  it  is  otherwise  as  to  debts  paid  by  the  mortgagee, 
which  are  not  charges  upon  the  land  and  necessary  to  protect 
the  lien  of  the  mortgage.*^ 


*5  In  this  case  it  appears  that  on 
December  28,  1858,  one  Thayer 
entered  into  possession  of  the  land 
under  process,  for  the  purpose  of 
foreclosing  the  mortgage;  on  Janu- 
ary, 15,  1859,  the  collector  of  taxes 
sold  a  part  of  the  mortgaged  prem- 
ises, including  the  land  in  litigation, 
to  Thayer  for  the  taxes  of  1858, 
and  not  having  been  redeemed 
within  the  year,  Thayer  conveyed 
the  same  to  Simons,  to  whom  he 
had  previously  assigned  the  mort- 
gage ;  so  that  at  the  time  of  the  sale 
and  payment  of  the  money  for  the 
taxes,  Thayer  was  himself  the  hold- 
er of  the  mortgage,  and  in  posses- 
sion under  it,  although  the  taxes 
were  assessed  in  April  previous, 
and  consequently  before  Thayer's 
entry.  The  court  say :  "The  pay- 
ment, then,  was  necessary  to  pro- 
tect the  estate,  and  the  am'-unt  paid 
might  unquestionably  have  been 
added  to  the  mortgage  debt,  as  ex- 
penses necessarily  incurred  by  the 
mortgagee  to  protect  the  estate." 
Citing:  Mix  v.  Hotclikiss.  14  Conn. 
32;  Williams  v.  Hilton,  35  Me.  354; 
Paae  v.  Foster,  7  N.  H.  392;  Kort- 
Mortg.  Vol.  II.— ino 


right  v.  Cady,  23  Barb.  (N.  Y.) 
497;  Godfrey  v.  Watson,  3  Atk.  518. 

46  See  post,  §   1204. 

*'  See  Griggs  V.  Banks,  59  Ala. 
313;  Harper  v.  Ely,  70  111.  581; 
Hosford  V.  Johnson,  74  Ind.  479; 
Grant  v.  Parsons,  67  Iowa,  31,  24 
N.  W.  578;  Arnold  v.  Foot,  7  B. 
Mon.  (Ky.)  66;  McSorley  v. 
Larissa,  100  Mass.  270;  Davis  v. 
Wynn,  84  Mass.  (2  Allen)  111; 
Baton  V.  Baton,  68  Mich.  437,  36 
N.  W.  209;  Harrigan  v.  Welmuth, 
77  Mo.  542;  Johnson  v.  Payne,  11 
Neb.  269,  9  N.  W.  81;  Weld  v. 
Sabin,  20  N.  H.  533,  51  Am.  Dec. 
240;  Jenness  v.  Robinson,  10  N.  H. 
215;  Page  v.  Foster,  7  N.  H.  392; 
Robinson  v.  Leavitt,  7  N.  H.  100; 
Madison  Ave.  Baptist  Church  v. 
Baptist  Church  in  Oliver  Street,  7Z 
N.  Y.  82 ;  Robinson  v.  Ryan,  25  N. 
Y.  320;  Silver  Lake  Bank  v.  North, 
4  John.  Ch.  (N.  Y.)  370;  Benedict 
V.  Gihnan,  4  Paige  Ch.  (N.  Y.)  58; 
Harpcrs's  Appeal,  64  Pa.  St.  315; 
Marson  v.  Robinson,  31  Pa.  St. 
459;  Lyman  v.  Little,  15  Vt.  576. 

*^  See  Burnett  v.  Denniston,  5 
John.   Ch.    (N.   Y.)   35;   McKinstry 


1586  MORTGAGE    FORECLOSURES.  [§    1186 

§  1186.  Surrender  of  premises  under  statute. — Under 

the  statutes  in  some  of  the  states,*^  it  is  a  condition  prece- 
dent to  the  right  to  redeem  lands  sold  under  mortgage  fore- 
closure, that  the  possession  of  the  land  be  delivered  to  the 
purchaser  within  a  specified  time  from  the  date  of  the  sale. 
The  necessity  to  allege  or  prove  a  previous  tender  or  surrender 
of  the  premises  within  the  designated  time  arises  where  the 
statutory  right  existing  after  foreclosure  is  asserted,  but  not 
where  the  effort  is  to  effectuate  the  equity  of  redemption. ^° 
Under  such  a  statute,  it  has  been  held  that  redemption  can- 
not be  made  by  a  householder  who  left  on  the  premises  some 
of  his  effects  and  a  part  of  his  family,  who  maintained  an  atti- 
tude of  resistance  to  the  purchaser's  entry,  and  were,  after 
the  lapse  of  ten  days,  with  their  property,  removed  under 
legal  process.^^ 

§  1187.  Allowance  as  attorney  fees. — We  have  already 
seen  ^^  that  payments  of  costs  of  suit  is  usually  one  of  the 
conditions  of  redemption  from  a  mortgage  foreclosure ;  but 
redemption  from  a  statutory  foreclosure  cannot  be  conditioned 
on  the  payment  of  an  allowance,  in  the  nature  of  attorney 
fees,  beyond  what  is  authorized  by  statute.^^  The  exaction 
of  such  attorney  fees,  even  where  provided  for  in  a  power  of 
sale,  as  a  condition  for  redemption  from  a  statutory  fore- 
closure, is  inconsistent  with  public  policy,  as  are  all  stipulations 
for  fees  in  advance,  other  than  those  allowed  by  statute.^* 

V.  Mervin,  cited  in  3  John.  Ch.  (N.  53  Voshiirgh  v.  Lay,  45  Mich.  455, 

Y.)     466;    Palmer    v.    Fowley,    71  8  N.  W.  91.    See  Parks  v.  Allen,  42 

Mass.     (5    Gray)     545;    Green    v.  Mich.  482,  4  N.  W.  227;  Myer  v. 

Tanner,   49   Mass.    (8    Met.)    411;  Hart,  40   Mich.   517,  29  Am.    Rep. 

Cleveland    v.    Clark,   Brayt.    (Vt.)  553;   Booth   v.   McQueen,    1    Doug. 

165.  (Mich.)  41. 

49  As  Ala.  Code,  §  1880.  ^^  Damon    v.    Deeves,    62     Mich. 

60  Pryor  v.  Hollinger,  88  Ala.  405,  465,  29  N.  W.  42.     See  Sinclaire  v. 

6  So.  760.  Lamed,  51   Mich.   339,  340,    16   N. 

^^Nelms  V.  Kennon,  88  Ala.  329,  W.  672;  Millard  v.  Truax,  50  Mich. 

6  So.  744.  343,    15    N.    W.    501 ;    Millard    v. 

52  See  ante,  %  1184.  Truax,  A7  Mich.  251,  10  N.  W.  358; 


§  1189] 


REDEMPTION. 


1587 


§  1188.  Notice  of  intention  to  redeem. — The  statutes 
under  which  redemption  may  be  made,  in  some  of  the  states 
require  that  notice  of  the  intention  to  redeem  shall  be  given. ^^ 
Where  the  statutes  thus  provide  they  should  be  strictly 
complied  with  in  order  to  save  all  the  rights  of  the  party. 
It  is  provided  in  England  that  a  mortgagee  under  a  mort- 
gage assigning  to  him  the  fund  in  court,  subject  to  a  prior 
life  interest  and  the  proviso  for  redemption,  is  entitled,  if 
six  months'  notice  of  intention  to  pay  off  the  mortgage  has 
not  been  given,  to  six  months'  interest  after  the  date  of 
service  upon  him  of  a  petition  by  the  trustee  of  a  settle- 
ment of  the  fund  made  after  the  death  of  the  life  tenant,  to 
have  the  fund  applied  in  payment  of  the  mortgage,  and  the 
residue  to  such  persons  entitled,  where  such  mortgagee  has 
not  demanded  or  taken  any  steps  to  compel  payment.®^ 

§  1189.  Payment  for  improvements. — A  purchaser  m 
good  faith  of  real  estate  on  foreclosure  of  a  prior  mortgage 
who  makes  improvements  on  the  property  supposing  his  title 
to  be  good,  is  entitled  to  credit  for  the  improvements  thus 
made,"  less  the  rents  and  profits  which  he  has  enjoyed,^*  as 
against  the  parties  redeeming,^^  such  as  junior  mortgagees,  al- 


Louder  v.  Burch,  47  Mich.  109,  10 
N.  W.  129;  Vosburgh  v.  Lay,  45 
Mich.  455,  8  N.  W.  91;  Mayer  v. 
Hart,  40  Mich.  517,  29  Am.  Rep. 
553;  Van  Marter  v.  McMillan,  39 
Mich.  304;  Hardwick  v.  Bassett,  29 
Mich.  17;  Sage  v.  Rigg.'s,  12  Mich. 
313. 

^*  See  Union  Central  Life  Ins. 
Co.  V.  Rogers,  155  Mo.  307,  55  S. 
W.  1019.  See  also  Sheridan  v. 
Nation,  159  Mo.  27,  59  S.  W.  972. 

/;;  North  Dakota,  notice  of  re- 
demption is  unnecessary  where  the 
owner  of  the  equity  of  redemption 
redeems.  Styles  v.  Dickey,  134  N. 
W.  702.     (N.  D.). 


^^  Smith  V.  Smith,  (1891)  3  Ch. 
550. 

57  See  Kinkead  v.  Peet,  132  N.  W. 
1095.     (Iowa). 

^^  Bradley  v.  Snyder,  14  111.  263, 
58  Am.  Dec.  564;  McQueen  v. 
Whetstone,  as  adm'r  etc.  127  Ala. 
417,  30  So.  548,  137  Ala.  301,  34  So. 
229. 

^^  Cable  V.  Ellis,  120  111.  136,  11 
N.  E.  188;  Roberts  v.  Fleming,  53 
111.  193;  Bradley  v.  Snyder,  14  111. 
263,  58  Am.  Dec.  564;  Troost  v. 
Davis,  31  Ind.  34;  Poole  v.  Johnson, 
62  Iowa.  611,  17  N.  W.  900;  Mont- 
gomery V.  Chadwick,  7  Iowa  114; 
McSorley    v.     Larissa,     100    Mass. 


1588 


MORTGAGE    FORECLOSURES. 


[^  1189 


though  they  were  not  made  parties  to  the  action.^"  But  im- 
provements cannot  be  made  by  a  mortgagee  in  possession  at 
the  expense  of  a  redemptioner,^^  on  the  principle  that  he  has 
no  right  to  enhance  the  value  of  the  estate  and  thus  render  it 
more  difficult  for  the  mortgagor,  or  those  entitled  to  do  so, 
to  redeem.®^  but  where  a  party  is  not  a  bona  fide  purchaser 
without  notice  of  existing  equities,  he  is  not  entitled  to  pay 
for  improvements  made  without  an  express  consent  or  ap- 
proval,®^ on  the  principle  that  those  who  expend  money  or 
labor  upon  the  property  of  another,  knowing  that  they  are  do- 
ing wrong,  are  voluntary  servants  and  agents  and  lose  what 
they  thus  expend. °*  And  a  person  who  buys  mortgaged 
premises  without  actual  knowledge  of  the  existence  of  the 
mortgage,  which  is,  however,  recorded,  and  put  betterments 
on  the  premises,  will  not  be  allowed  therefor,  except  out  of 


270;  Barnard  v.  Jennison,  27  Mich. 
230;  Higginbotiom  v.  Benson,  24 
Neb.  461,  8  Am.  St.  Rep.  211,  39 
N.  W.  418;  Vanderhaise  v.  Huges, 
13  N.  J.  Eq.  (2  Beas.)  410;  Miner 
V.  Beekman,  SO  N.  Y.  2,Z7 ;  Mickle  v. 
Dillay,  17  N.  Y.  80;  Fogal  v.  Pirro, 
10  Bosw.  (N.  Y.)  100;  Wetmore  v. 
Roberts,  10  How.  (N.  Y.)  Pr.  51; 
Putnam  v.  Ritchie,  6  Paige  Ch.  (N. 
Y.)  390;  Benedict  v.  Gilman.  4 
Paige  Ch.  (N.  Y.)  58;  Harder's 
Appeal,  64  Pa.  St.  315;  Green  v. 
Westcott,  13  Wis.  606;  Green  v. 
Dixon,  9  Wis.  532 ;  Fraser  v.  Prath- 
er,  1  McA.  (D.  C.)  217;  Stillman  v. 
Rosenbreg.  78  N.  W.  913.     (Iowa). 

But  where  the  improvements  are 
made  after  the  action  to  redeem  is 
brought,  the  rule  does  not  apply. 
Benson  v.  Bunting,  141  Cal.  462.  75 
Pac.  59. 

60  Higginhottom  v.  Benson,  24 
Neb.  461,  8  Am.    St.   Rep.  211,  39 


N.  W.  418.  See  Ensign  v.  Batter- 
son,  68  Conn.  298,  36  Atl.  51.  Set 
also  Jones  v.  Dutch,  3  Neb.  (Unof.) 
673,  92  N.  W.  735. 

^^  Horn  V.  Indianapolis  National 
Bank,  125  Ind.  381,  25  N.  E.  558,  9 
L.R.A.  676,  21  Am.  St.  Rep.  231; 
American  freehold  Land  Mortgage 
Co.  V.  Pollard,  132  Ala.  155,  32  So. 
630;  Lynch  v.  Ryan,  137  Wis.  13, 
129  Am.  St.  Rep.  1040,  118  N.  W. 
174;  Bradley  v.  Merrill,  91  Me.  340, 
40  Atl.  132.  See  also  McAbee  v. 
Harrison,  50  S.  C.  39,  27  S.  E.  539. 

62  Quinn  v.  Brittain,  1  Hoff.  Ch. 
(N.  Y.)  353;  Moore  v.  Cable.  1 
John.  Ch.  (N.  Y.)  385;  Bell  v.  New 
York.  10  Paige  Ch.  (N.  Y.)  49; 
Holmes  V.  Grant,  8  Paige  Ch.  (N. 
Y.)  252;  Putnam  v.  Ritchie,  6 
Paige  Ch.  (N.  Y.)  390. 

63  JVitt  V.  Trustees,  55  Wis.  380. 
^^Silsbuiy   V.    McCoon,   3    N.    Y. 

382.  53  .Am.  Dec.  307. 


§    1190]  REDEMPTION.  1589 

the  surplus  arising-  on  foreclosure.^*  The  reason  for  this  is 
that  the  mortgage  being  recorded,  is  constructive  notice  to 
such  purchaser. 

§  1190.  Right  to  assignment  of  mortgage. — It  has  been 
said  that  the  right  to  redeem  a  mortgage  does  not  carry  with 
it  the  right,  upon  such  redemption,  to  an  assignment  of  the 
mortgage  and  of  the  bond  or  other  instrument  evidencing  the 
mortgage  debt,  or  of  either,  unless  the  redeeming  party  has 
the  position  of  surety,  or  can  be  regarded  as  surety  for  the 
mortgage  debt;®^  but  if  the  party  redeeming  occupies  the 
position  of  surety,  on  the  payment  of  the  debt,  he  is  entitled 
to  an  assignment,  or  effectual  transfer  of,  the  debt  and  of 
the  bond  or  instrument  evidencing  the  debt.^' 

65  Whorton   v.   Moore,  84   N.    C.  John.  Ch.   (N.  Y.)  123,  8  Am.  Dec. 

479,  2,7  Am.  Rep.  627.  554;  King  v.  Baldwin,  2  John.  Ch. 

^^ Ellsworth  V.  Lockwood,  42  N.  (N.  Y.)  554;  Speiglemyer  v.  Craw- 

Y.  89.  ford,  6  Paige  Ch.     (N.    Y.)    257; 

6'  Ellsworth  V.  Lockwood,  42  N.  New  York  State  Bank  v.  Fletcher, 

Y.  89.     Citing  Mathews  v.  Aiken,  5  Wend.   (N.  Y.)  85. 
1  N.  Y.  595;    Hayes   ?.    Ward,   4 


CHAPTER  XLIII. 


REDEMPTION— SUM    PAYABLE   ON. 

§  1191.  Amount  payable — Generally. 

§  1192.  Same — By  mortgagor. 

§  1193.  Same — Same — Where  not  made  party. 

§  1194.  Same — Same — On    redeeming    from    subsequent   lienor-purchaser. 

§  1195.  Same — By    assignee    of    mortgagor. 

§  1196.  Same — By  third  party  interested. 

§  1197.  Same — By  junior  lienor. 

§  1198.  Same — Same — Where  not  made  party. 

§  1199.  Same — By  tenant  in  common. 

i§  1200.  Same — From  subsequent  lienor  and  redemptioner. 

:§  1201.  Consolidation  of  liens — Tacking. 

:?  1202.  Error  in  ascertaining  amount. 

.§  1203.  In   case   of   usurious   interest. 

i§  1204.  Sum  paid  to  protect  title. 

§  1205.  Permanent  improvements — To  be  paid  for,  when. 

§  1206.  Rents  and  profits — Applicable  on  sum  payable,  when. 

§  1207.  Costs  on — Attorney's  fees. 

§  1191.  Amount  payable — Generally, — The  general  rule 
is  that  any  one  seeking  to  redeem  property  after  a  foreclo- 
sure sale  must  pay  or  tender  the  full  amount  of  the  mortgage 
debt,^*  regardless  of  what  the  property  may  have  brought,®^ 
except  in  those  cases  where  the  deficiency  has  been  paid  by  the 

68  With  interest.  Clark  as  adm'r  Mass.  49.  8  N.  E.  881 ;  Powers  v. 
etc.  V.  Seagraaves  adm'x.  186  Mass.  Golden  Lumber  Co.  43  Mich.  468,  5 
430,  71  N.  E.  813.  N.  W.  656 ;  Martin  v.  Fridley,  23 

69  Horn  V.  Indianapolis  National  Minn.  13 ;  Swearing  ton  v.  Roberts, 
Bank,  125  Ind.  381,  25  N.  E.  558,  9  12  Neb.  3Z3.  11  N.  W.  325;  Raynor 
L.R.A.  676,  21  Am.  St.  Rep.  231;  v.  Selmes,  52  N.  Y.  579;  Collins  v. 
Duke  V.  Benson,  79  Ind.  24;  John-  Riggs,  81  U.  S.  (14  Wall.)  49,  20 
son  V.  Harman,  19  Iowa,  56;  Lee  L.  ed.  723;  Dougherty  v.  Kubaf,  67 
V.  Stone,  5  Gill.  &  J.  (Md.)  1,  23  Neb.  269,  93  N.  W.  317;  Shumate 
Am.  Dec.  589;  Way  v.  Mullett,  143  as  adm'r  etc.  v,  McLendon,  120  Ga. 

1590 


§  1192] 


REDEMPTION. 


1591 


person  equitably  bound  to  pay  the  same.'"  In  those  cases 
where  a  law  changing  the  rate  of  interest  on  bids  at  mort- 
gage sales  applies  to  all  sales  made  thereafter,  a  purchaser 
at  mortgage  foreclosure  will  be  entitled  to  receive  the  rate  of 
interest  prescribed  by  the  law  in  force  at  the  time  when  he 
purchased.'^ 

§  1192.  Same — By  mortgagor. — A  mortgagor  seeking 
to  redeem  must  pay  the  whole  amount  due  upon  the  mort- 
gage, and  will  usually  be  allowed  to  redeem  upon  paying  that 
amount,  although  indebted  to  the  mortgagee  on  other  ac- 
counts ;  '^  but  where  it  appears  to  the  court  that  the  parties 
agreed  that  the  mortgage  should  be  held  as  security  for  a 
new  and  different  debt  from  that  set  out,  a  court  of  equity  will 
not  aid  the  mortgagor,  or  permit  him,  to  redeem  until  he  does 
equity  and  pays  the  debt  intended  to  be  secured  by  the  mort- 
gage, according  to  the  agreement  and  real  equities  between 
the  parties.'^    On  such  redemption  the  mortgagor  will  not  be 


396,  48  S.  E.  10;  Evans  v.  Kahr,  60 
Kan.  719,  57  Pac.  950,  58  Pac.  467. 
See  also  Kinkcad  v.  Peet,  132  N. 
W.  1095.  (Iowa)  ;  Oakmaii  v. 
IValker,  69  Vt.  344,  38  Atl.  63. 

In  Alabama  it  is  held  that  a  judg- 
ment creditor  of  the  mortgagor 
need  not  pay  the  balance  of  the 
mortgage  debt  in  order  to  redeem. 
Williams  v.  Rouse,  124  Ala.  160,  27 
So.  16;  First  National  Bank  v. 
Elliott,  125  Ala.  646,  47  L.R.A.  742, 
82  Am.  St.  Rep.  268,  27  So.  7. 

"^^  Bradley  v.  Snyder,  14  111.  263, 
58  Am.  Dec.  564;  Hosford  v.  John- 
son, 74  Ind.  479 ;  Knowles  v.  Rab- 
lin,  20  Iowa,  101 ;  Johnson  v.  Har- 
mon, 19  Iowa,  56 ;  Stoddard  v. 
Forbes,  13  Iowa,  296,  300;  JVliite  v. 
Hampton,  13  Iowa,  259,  264; 
Powers  V.  Golden  Lumber  Co.  43 
•Mich.  468,  5  N.  W.    656 ;    Baker   v. 


Powers,  6  Mich.  522;  Martin  v. 
Fridley,  23  Minn.  13 ;  Gage  v. 
Brewster,  31  N.  Y.  218;  Vroom  v. 
D  it  mas,  4  Paige  Ch.  (N.  Y.)  526, 
531;  Collins  v.  Riggs,  81  U.  S.  (14 
Wall.)  491,  20  L.  ed.  723. 

'^  Connecticut  Mut.  L.  Ins.  Co.  v. 
Cushman,  108  U.  S.  51.  27  L.  ed. 
648. 

''^  Stallings  v.  Thomas,  55  Ark. 
326,  18  S.  W.  184;  Lee  v.  Stone. 
5  Gill  &  J.  (Md.)  1,  2Z  Am. 
Dec.  589;  Taft  v.  Stoddard,  142 
Mass.  545,  8  N.  E.  586;  Merritt  v. 
Hosmer,  77  Mass.  (11  Gray)  276, 
71  Am.  Dec.  713;  Dickerson  v. 
Hayes,  26  Minn.  100,  1  N.  W.  854 ; 
Loney  v.  Courtnay,  24  Neb.  580.  39 
N.  W.  616. 

73  Taft  V.  Stoddard,  142  Mass. 
545,  8  N.  E.  586;  Upton  v.  National 
Bank    of   So.    Reading.    120    Mass. 


1592  MORTGAGE    FORECLOSURES.  [§    1192 

required  to  account  for  the  rents  and  profits  during  his  occu- 
pation even  where,  after  entry  for  breach  of  condition,  he 
(.)ccupies  the  mortgaged  premises  under  an  agreement  to  pay  a 
stipulated  rent,  which  he  neglects  to  do;  '*  but  will  be  charge- 
able with  interest  and  with  taxes  paid  and  necessary  repairs 
made,  together  with  costs  of  proper  improvements,'^  but  not 
with  the  costs  of  the  sale  where  invalid.'®  and  will  be  entitled 
to  credit  for  the  reasonable  rents  and  profits  of  the  land."  In 
those  cases  where  there  has  been  a  foreclosure  for  more  than 
is  actually  due,  the  mortgagor  may,  in  an  action  to  redeem,  be 
allowed  to  do  so,  on  proper  showing,  by  paying  the  amount 
justly  due  on  the  mortgage;  but  he  must  also  show  an  excuse 
for  not  applying  to  the  court  before  the  sale  and  preventing 
a  foreclosure  for  more  than  was  due.'*  But  in  a  case  where 
the  mortgagee  obtained  judgment  on  an  overdue  note  secured 
by  mortgage,  authorizing  a  sale  on  foreclosure  and  providing 
that  any  surplus  should  be  applied  in  satisfaction  of  the  mort- 
gage notes  not  yet  due,  and  the  mortgagee  bid  in  the  property 

153;  Stone  v.  Lane,  92  Mass.  (10  As  an  offset  will  be  entitled  to 
Allen)  74;  Joslyn  v.  Wyman,  87  credit  for  the  reasonable  rents  and 
Mass.  (5  Allen)  62;  Carpenter  v.  profits  of  the  land.  Stallings  v. 
Plagge,  192  111.  82,  61  N.  E.  530.  Thomas,  55  Ark.  326,  18  S.  W.  184. 
'*  Harrison  v.  Wise,  24  Conn.  1,  Where  the  decree  in  a  void  mort- 
63  Am.  Dec.  151;  Merritt  v.  Hos-  gage  foreclosure  was  in  part  paid 
mer,  77  Mass.  (11  Gray)  276,  71  by  other  means,  and  the  land  pur- 
Am.  Dec.  713.  chased  by  the  mortgagee  for  con- 
Mortgagors  may  be  decreed  to  siderably  less  than  the  amount  of 
account  for  rents  and  profits  of  the  the  decree,  the  mortgagor  in  re- 
mortgaged  premises  to  the  mort-  deeming  must  pay  the  purchase 
gagees,  where  by  an  appeal  they  price,  with  interest  and  taxes, 
have  for  a  long  time  kept  the  mort-  Stallings  v.  Thomas,  55  Ark.  326, 
gagees  out  of  such  rents  and  18  S.  W.  184;  Loney  v.  Courtnay, 
profits.  Bank  of  Utica  v.  Finch,  3  24  Neb.  580,  39  N.  W.  616. 
Barb.  Ch.  (N.  Y.)  293,  49  Am.  Dec.  76  See  Rodman  v.  Quick,  211  111. 
175.  546,  71  N.  E.  1087. 

'5  Stallings  v.   Thomas,    55    Ark.  77  Stallings  v.    Thomas,    55    Ark. 

326,  18  S.  W.  184;  Loney  v.  Court-  326.  18  S.  W.  184. 

;;flr.  24  Neb.  580.  39  N.    W.    616;  ^^  Dickerson  v.  Hayes,  26  Minn. 

Dickerson  v.  Hayes.  26  Minn.  100,  100,  1  N.  W.  834. 
1  N.  W.  834. 


§    1193]  REDEMPTION.  1593 

for  more  than  the  amount  of  the  judgment,  it  was  held  that 
the  mortgagor  could  not  redeem  on  paying  the  amount  of  the 
judgment,  but  that  he  must  pay  the  amount  of  the  bid,  not- 
withstanding the  fact  that  the  mortgagee  had  not  paid  the 
money  into  court.'' 

It  is  the  general  rule  that  a  mortgagor  who  goes  into 
equity  to  redeem  must  do  equity  before  he  can  sustain  his 
bill.*"  He  will  not  be  permitted  to  redeem  except  upon 
the  payment  of  the  debt  actually  intended  to  be  secured  ac- 
cording to  the  agreement  and  real  equities  between  the  parties 
whether  that  debt  is  the  one  secured  in  the  mortgage  or  not,'* 
also  upon  payment  of  all  collateral  debts  due  from  him  to  the 
mortgagee,  though  not  included  in  the  mortgage.** 

§  1193.  Same — Same — Where  not  made  party. — Un- 
der those  statutes  vesting  in  the  mortgagor,  unless  the  mort- 
gage stipulates  to  the  contrary,  the  legal  title  and  right  of 
possession,  in  an  action  by  a  mortgagor,  who  was  not  made  a 
party  to  the  action  to  foreclose,  to  redeem  from  the  foreclo- 
sure  sale,   the   amount  necessary   to  redeem   should   be   de- 

■^  Williamson    v.    Dickerson,    66  77   N.    E.   721.      See    also   Rich  v. 

Iowa  105,  23  N.  W.  286.  Monsey  as  exr.  etc.  149  N.  C.  Z7, 

^^Chamberlain   v.    Thompson,   10  62  S.  E.  762. 

Conn.  243,  26  Am.  Dec.  390;  L?^  V.  ^'^Taft    v.    Stoddard,    142    Mass. 

Stone,  5  Gill  &  J.  (Md.)   1,  23  Am.  545,  8  N.  E.  586;  Upton  v.  National 

Dec.    589;    Loney   v.    Courtnay,   24  Bank   of  So.  Reading,    120    Mass. 

Neb.    580,    39    N.    W.    616;    Com-  153;   Stone  v.  Lane,  92  Mass.    (10 

stock  V.  Johnson,  46  N.Y.  615;  Cas-  Allen)    74;   Joslyn    v.     PVynian,  87 

sler  V.  Shipman,  35  N.  Y.  533;  Mc-  Mass.  (5  Allen)  62;  Ford  v.  Davis, 

Donald  v.  Neilson,  2  Cow.  (N.  Y.)  168  Mass.   116,  46  N.  E.  435.     See 

139,    14  Am.    Dec.    431;     Tripp    v.  also   Weller  v.  Summers,  82  Minn. 

Cook,  26  Wend.  (N.  Y.)  143;  Finch  307,  84  N.  W.  1022. 

V.  Finch,  10  Ohio  St.  501,  507;  Cow-  ^^  Anthony  v.   Anthony,  23   Ark. 


Hn  V.  Hartwell,  5  Clark  &  F.  484 
Whitaker  v.  Hall,  1  Glyn  &  J.  213 
Hanson  v.  Keating,  4  Hare,  1,  5,  6 


479;  Chamberlain  v.  Thompson,  10 
Conn.  243,  26  Am.  Dec.  390 ;  Lee  v. 
Stone.  5  Gill  &  J.  (Md.)   1,  23  Am. 


MacKenna  v.  Fidelity  Trust  Co.  of      Dec.   589.     See    also    Saunders    v. 
Buffalo,   184  xN.  Y.    411.    3    L.R.A.       Savage,  63  S.  W.  218.     (Tenn.). 
(N.S.)   1068,  112  Am.  St.  Rep.  620, 


1594  MORTGAGE    FORECLOSURES.  [§    1194 


termined  with  reference  both  to  the  right  to  rents  and  profits 
and  the  liabihty  to  pay  for  improvements.®^ 

§  1194.  Same — Same — On  redeeming  from  subsequent 
lienor-purchaser. — In  accordance  with  the  doctrine  here- 
tofore laid  down,®*  it  has  been  held  that  where  a  mortgagee 
purchases  the  mortgaged  land  at  a  judical  sale,  made  for  the 
purpose  of  enforcing  the  claim  of  a  third  person  against  the 
mortgagor,  under  an  agreement  to  reconvey  it  to  the  mort- 
gagor when  the  latter  pays  him  the  amount  of  the  mortgage 
debt,  together  with  the  sum  expended  in  the  purchase  of  the 
land,  before  a  court,  which  has  jurisdiction  of  the  land  and 
the  parties,  will  decree  a  reconveyance,  it  will  see  that  the 
amount  of  a  judgment  against  the  mortgagor,  which  was  a 
lien  on  the  land  in  favor  of  the  mortgagee  at  the  time  of  the 
purchase,  is  paid,  as  well  as  the  mortgage  debt  and  the  ad- 
vances.®* 

§  1195.  Same — By  assignee  of  mortgagor. — We  have 

heretofore  seen  ®®  that  a  mortgagor  coming  into  equity  to 
redeem  the  mortgage  must  pay  not  only  the  debt  intended 
to  be  secured  by  the  mortgage,  whether  that  is  the  debt 
described  in  the  mortgage  or  not,  but  also  all  collateral 
debts  between  the  parties.  The  rights  of  an  assignee  of  a 
mortgagor  are  not  superior  to  those  of  the  mortgagor  him- 
self,®' consequently  the  same  principle   applies  to   a   bill  to 

But  where  the  mortgagee  seeks  a  As    to    amount    to    be    paid    by 

foreclosure  in  chancery,  the  mort-  dowress,  see  Merselis  v.  Van  Riper, 

gagor  is  permitted  to  redeem  upon  55  N.  J.  Eq.  618,  38  Atl.  196. 

payment     of     the    mortgage    debt  ^^  Barrett  v.  Blackmar,  47  Iowa. 

alone.      Anthony    V.    Anthony,    23  565. 

Ark.  479.  ®*  See  ante,  §  1192. 

But  a  widow,  redeeming  from  a  ^^  Hinon  v.  Pritchard,  107  N.  C. 

mortgage  in  which  she  joined,  can-  128,  12  S.  E.  242,  10  L.R.A.  401. 

not   be    required   to   pay    a   second  86  ggg  q„;^^  §  1192. 

mortgage   to   the    same   mortgagee,  ^''Saunders  v.  Frost,  22  Mass.  (5 

in  which  she  did  not  join.    Hays  v.  Pick.)  259,  16  Am.  Dec.  394. 
Cretin,  102  Md.  695,  4  L.R.A. (N.S.) 
1039,  62  Atl.  1028. 


§    1197]  REDEMPTION.  1595 

redeem  brought  by  the  grantee  of  the  mortgagor  with  a 
knowledge  of  the  facts;  and  the  administrator  of  the  latter 
stands  in  no  better  position.*' 

§  1196.  Same — By  third  party  interested. — In  a   case 

where  defendants  having  condemned,  by  exercise  of  the  right 
of  eminent  domain,  a  part  of  lands  covered  by  a  mortgage, 
without  making  the  mortgagee  a  party,  and  the  latter  after- 
wards foreclosed  his  mortgage  without  making  such  defend- 
ants parties,  and  having  bought  the  land  at  a  price  which 
left  a  large  balance  due,  brought  suit  to  compel  the  defendants 
to  redeem.  The  court  held  that  they  could  not  redeem  by 
paying  a  portion  of  the  mortgage  debt  proportionate  to  the 
value  of  the  land  they  had  condemned  to  the  whole  tract,  but 
that  they  must  pay  the  full  amount.®^ 

§  1197.  Same — By  junior  lienor. — We  have  already 
seen  where  the  mortgagee  seeks  to  foreclose  in  equity,  the 
mortgagor  will  be  permitted  to  redeem  upon  payment  of 
the  mortgage  debt  only,  no  matter  to  what  amount,  on  other 
accounts,  he  may  stand  indebted  to  the  mortgagee.  And  it 
is  equally  well  settled  that  a  subsequent  mortgagee  or  judg- 
ment creditor  seeking  to  redeem,  will  generally  be  permitted 
to  do  so  upon  payment  of  the  mortgage  debt  alone. ^°  It  has 
been  said  that  upon  the  redemption  by  a  second  mortgagee 
from  a  first  who  is  in  possession,  the  latter  should  be  credited 
on  account  with  such  reasonable  counsel  fees  as  he  was  obliged 

88  Taft    V.    Stoddard,    142    Mass.  portion  of  the  debt  the  amount  of 

543,  8  N.  E.  586;  Stone  v.  Lane,  92  land  held  by    them    bears    to    the 

Mass.  (10  Allen)  74;  Joslyn  v.  Wy-  amount  of  the  tract  mortgaged,  was 

man,  87  Mass.   (5  Allen)   62.  fully  discussed.     Ante,  §  1180. 

^^  Mutual  Life  Ins.  Co.  v.  Easton  ^^  Lee  v.  Stone,  5  Gill  S.  J.  (Md.) 

&    A.    R.    Co.    38   N.  J.   Eq.    (11  1,  23  Am.  Dec.  589;    Saunders    v. 

Stew.)   132.  Frost,  22  Mass.    (5    Pick.)    259,   16 

The   right   of    a   railroad    to    re-  Am.  Dec.  394. 
deem  from   a  mortgage  by   paying 


1596  MORTGAGE    FORECLOSURES.  [§    1197 

to  pay  in  collecting  the  rents  and  profits,  and  he  is  not  liable 
for  damages  done  to  the  land  by  his  tenant,  without  his  knowl- 
edge, if  the  tenant  is  a  proper  person  to  lease  to;  nor  for  wood, 
in  reasonable  quantities,  cut  and  used  by  such  tenant  for  fuel 
and  repairs."  In  those  cases  where  a  second  mortgagee,  on 
seeking  to  redeem  from  a  prior  mortgage,  tendered  the  proper 
amount  on  demanding  an  assignment  of  the  mortgage,  and 
renewed  the  tender  when  the  senior  mortgagee  began  fore- 
closure proceedings,  the  second  mortgagee  will  not  be  justly 
chargeable  with  costs  for  omitting  to  keep  good  the  tender 
in  a  bill  to  enforce  his  right  to  redeem.'^  There  are  instances, 
however,  in  which  the  equities  of  the  case  will  require  that 
junior  lienors  seeking  to  redeem  shall  pay  prior  liens.®^  Thus 
it  has  been  said  that  where  A  is  a  first  mortgagee,  B  is  a  second 
mortgagee  and  B,  C  and  D  are  third  mortgagees,  and  B  as- 
signs to  A  the  second  mortgage  and  all  his  interest  in  the 
third  mortgage,  C  and  D  cannot  redeem  from  A  on  account 
of  the  second  mortgage  without  paying  him  also  the  amount 
of  the  first  mortgage.^*  This  is  on  the  principle  that  a  mort- 
gagee who  has  paid  a  prior  mortgage,  or  other  incumbrance 
upon  the  land,  is  entitled  to  be  repaid  the  sum  so  advanced, 
when  the  mortgagor,  or  other  person  claiming  under  him, 
comes  in  to  redeem.'^ 

It  is  thought  that  where  land  is  sold  under  a  mortgage 
foreclosure  for  a  sum  less  than  the  amount  of  the  judgment, 

^^  Hubbard  v.  Shaw,  94  Mass.  (12  ^*  Saundrs  v.  Frost,  22  Mass.   (5 

Allen)   120.  Pick.)  259,  16  Am.  Dec.  394. 

9^  Lamb  v.  Jeffrey,  41  Mich.  719,  ^^McCormick  v.  Knox,  105  U.  S. 

3  N.  W.  204.  122,    26    L.    ed.    940.      See    Harper 

As  to  costs  on  redemption  from  v.  Ely,  70  111.  581 ;  Arnold  v.  Foot,  7 

a  foreclosure  under  a  mortgage  and  B.  Mon.  (Ky.)  66;  Paige  v.  Foster, 

sale  of  the  land.     See  post,  §  1243.  7  N.  H.  392;  Robinson  v.  Ryan.  25 

^^  Duke   V.    Beeson,   79   Ind.    24;  N.  Y.  320;  Redmond  v.  Burroughs, 

Saunders    v.    Frost,    22    Mass.     (5  63  N.  C.  242. 
Pick.)   259,   16  Am.  Dec.  394;  Mc- 
Cormick   v.   Knox,    105    U.    S.    122, 
26  L.  ed.  940. 


§     1199]  REDEMPTION.  1597 

and  a  junior  incumbrancer,  comes  in  to  redeem,  he  will  be 
required  to  pay  the  full  amount  of  the  judgment.®^ 

§   1198.  Same — Same — Where   not  made   party. — The 

amount  which  must  be  paid  to  redeem  by  a  junior  incumbran- 
cer who  was  not  made  a  party  to  the  foreclosure  of  the  senior 
mortgage,  is  to  be  determined  from  the  mortgage  and  not 
from  the  decree.^'''  Such  a  mortgagee  not  made  a  party  to 
the  foreclosure  and  sale  under  a  prior  mortgage  cannot,  in 
an  action  to  require  him  to  redeem  or  be  foreclosed,  be 
required  to  pay  the  costs  of  foreclosure  of  the  former  mort- 
gage, or  to  submit  to  any  unusual  exactions  as  a  condition 
of  redeeming.®*  Neither  can  he  be  required  to  pay  for  im- 
provements put  upon  the  mortgaged  premises  by  a  purchaser 
at  such  sale  with  notice  of  the  existence  of  his  mortgage 
and  that  it  had  not  been  foreclosed. ®®  And  where  the  pur- 
chaser at  a  foreclosure  sale,  removes,  without  injury  to  the 
premises,  a  house  he  had  built  thereon  before  redemption,  a 
junior  mortgagee  not  a  party  to  the  foreclosure,  is  not  bound 
to  pay  the  value  of  the  house  in  order  to  redeem,* 

§  1199.  Same — By  tenant  in  common. — The  general 
rule,  believed  to  be  without  an  exception,  is  that  a  tenant 
in  common  of  an  equity  of  redemption,  if  he  redeems,  must 
pay  the  whole  mortgage  debt,  and  cannot  compel  the  mort- 
gagee to  accept  such  portion  of  the  mortgage  debt  as  is 
represented  by  his  interest  in  the  land.  And  having  paid 
the  whole  mortgage  debt,  he  has  no  right  of  contribution 
against  his  co-tenants  personally,  but  his  only  remedy  is  by 
a  foreclosure  of  their  interests  in  the  land,  if  they  fail  to  pay 

^^  Duke    V.    Beeson,    79  Ind.    24.          ^^  Moult  on    v.    Cornish,    61    Hun 

See  ante.  §§  1191,  1196.  (N.  Y.)  438,  41  N.  Y.  S.  R.  41.  16 

^ifohuson   V.   Hosford,  110   Ind.       N.  Y.  Supp.  267. 

572,  10  N.  E.  407.  ^  Poole  v.  Johnson,  62  Iowa,  611, 

98  Moiilton   V.    Cornish,  61    Hun       17  N.  VV.  900. 

(N.  Y.)  438,  41  N.  Y.  S.  R.  41,  16 
N.  Y.  Supp.  267. 


1598  MORTGAGE    FORECLOSURES.  [§    1200 

their  share;   and  they  have  the  option   to  pay   or  give   up 
their  interests.^ 

§  1200.  Same — From  subsequent  lienor  and  redemp- 
tioner. — In  keeping  w^ith  the  general  principles  already 
laid  down  in  this  chapter,  a  subsequent  mortgagee  or  other 
subsequent  lienor  who  has  paid  a  prior  mortgage  or  other  in- 
cumbrance, is  entitled  to  be  repaid  when  the  mortgagor  or 
his  vendee,  or  a  subsequent  lienor,  comes  in  to  redeem.^  Thus 
it  is  said  that  a  judgment  creditor  who  has  redeemed  from  a 
foreclosure  sale  five  tracts  of  land  sold  separately  under  the 
decree  of  foreclosure,  is  entitled  to  have  the  entire  amount  of 
his  judgment,  instead  of  a  proportionate  part  thereof,  paid 
upon  a  redemption  of  one  or  more  of  the  tracts  of  land,  under 
the  Iowa  Code,*  providing  that  the  terms  of  redemption  in  all 
cases  shall  be  the  reimbursement  of  the  amount  paid  by  the 
holder  "added  to  the  amount  of  his  own  lien"  with  interests 
and  costs.^  And  in  a  case  where  a  junior  mortgagee  pur- 
chases the  senior  mortgage  after  sale  thereunder,  and  more 
than  six  and  less  than  nine  months  thereafter,  pays  the  pur- 
chaser the  amount  of  his  bill,  with  interest,  takes  an  assign- 
ment of  the  certificate  of  sale,  files  an  affidavit  with  the  clerk, 
setting  out  his  mortgage  lien  and  stating  that  he  has  redeemed 
as  junior  lienholder,  and  also  obtains  a  deed  from  the  sheriff, 
— neither  the  owner  of  the  land  nor  a  purchaser  with  knowl- 
edge of  the  junior  mortgagee's  rights  can  thereafter  redeem 
without  paying  both  mortgages,  until  he  has  established  a 
defense  to  the  junior  mortgage.^  In  those  cases  where  the 
property  is  amply  sufficient  for  all  the  liens  the  court  will  not, 
at  the  instance  of  a  subsequent  lien-holder,  who  redeems  from 
a  prior  lien-holder  and  redemptioner,   undertake  to  inquire 

^  Lyon  V.  Robbins,  45  Conn.  513.  N.  W.  333.     See  Woonsocket   Sav. 

3  McCormick  v.  Knox,  105  U.  S.  Inst.  v.  Goulden,  28  Fed.  900. 

122,  26  L.  ed.  940.  ^  Lamb  v.  West,  75  Iowa,  399,  39 

Ma.  §  2106.  N.  W.  666. 
'  5  Case  V.   Fry,  91   Iowa,   132,   59 


§    1201]  REDEMPTION,  1599 

into  the  validity  of  amount  due  on  prior  liens,  in  order  to 
enhance  the  value  of  the  property  in  the  hands  of  the  last 
redeniptionerJ 

§  1201.  Consolidation  of  claims — Tacking. — There  are 
cases  where  several  liens  may  be  united  in  one  action,  and 
persons  seeking  to  redeem  are  required  to  pay  all.  Thus  one 
who  has  executed  to  different  persons  two  mortgages  upon 
the  same  land,  cannot  after  the  second  mortgage  has  been 
foreclosed,  and  the  title  under  both  mortgages  united  in  one 
person,  be  let  in  to  redeem  from  the  second  mortgage  upon 
payment  of  the  sum  secured  by  the  first  mortgage.^  The 
holder  of  a  purchaser's  interest  upon  a  foreclosure  or  execu- 
tion sale,  in  order  to  tack  a  subsequent  lien  to  it  for  the  pur- 
poses of  redemption,  must  place  himself  in  the  line  of  redemp- 
tioners  with  respect  to  such  subsequent  lien,  by  complying  with 
the  statute  regulating  in  the  particular  instance.^  We  have 
already  seen  that  a  mortgagor  coming  into  equity  to  redeem 
must  do  equity  and  pay  all  debts  owing  from  him  to  the 
mortgagee ;  ^°  also  that  a  junior  incumbrancer  redeeming  will 
be  allowed  to  add  to  his  own  claim  the  amount  necessarily  paid 
out  and  expended  in  redeeming  and  preserving  the  property 
and  his  lien."  The  old  English  doctrine  of  "tacking"  has 
been  abolished  in  this  country,  and  where  tacking  to  any 
degree  is  permitted,  it  will  never  be  allowed  to  the  injury 

"^  Parker  v.  St.  Martin,  53  Minn.  eluded  the  application  of  the  Eng- 

1,  55  N.  W.  113.  lish     Conveyancing     and     Law     of 

^Butler  V.  Seward,  92  Mass.   (10  Property  Act  1881,  §  17.  is  not  de- 
Allen)   466.  feated  by  the   fact  that  they  have 

9  Buchanan  v.  Reid,  43  Minn.  172,  given   notice,    under   §  20,    to    the 

45  N.  W.  11.  mortgagor   to   pay   off   one   of    the 

In   England   the   right   of    mort-  mortgages   in   order    to    acquire    a 

gagees    holding    several    mortgages  power  of  sale,  and  he  has  prepared 

executed    by   the    same    mortgagor,  for  the  payment  and  tendered  the 

although      on      different     property,  money.     Griffith  v.  Pound,  L.  R.  45 

to    consolidate    them    so    that    all  Ch.  Div.  553. 

must  be   redeemed   together   if   re-  ^°  See  ante,  §  1192, 

deemed  at  all,  where  they  have  ex-  ^^  See  ante,  §  1197. 


1600  MORTGAGE    FORECLOSURES.  [§     1202 

of  Other  creditors. ^^  Thus  it  has  been  said  that  the  liens 
of  one  whose  land  has  been  sold  under  a  decree  of  chancery 
for  the  payment  of  debts,  seeking  to  enforce  against  the  pur- 
chaser their  lien  for  an  unpaid  balance  of  the  purchase  money, 
by  a  resale  of  the  premises,  cannot  tack  to  it  a  claim  against 
the  purchaser  as  surety  on  the  bond  of  their  guardian  for  sums 
previously  paid  to  and  squandered  by  him,  to  the  exclusion 
of  lien  creditors  of  such  purchaser. ^^ 

§  1202.  Errors  in  ascertaining  amount. — It  is  said  that 
an  error  in  ascertaining  the  amount  necessary  to  redeem 
land  sold  under  mortgage  foreclosure  will  not  defeat  the 
right  of  the  redemptioner,  who  pays  the  amount  called  for 
in  the  sheriff's  deed,  as  against  the  mortgagee,  who  becomes 
purchaser  at  the  sale ;  ^*  particularly  is  this  the  case  where 
the  error  is  occasioned  by  the  mistake  of  the  mortgagee's 
attorney  in  stating  to  the  sheriff  the  rate  of  interest  specified 
in  the  mortgage,  and  where,  though  the  mortgagee  knew  of 
the  facts  several  days  before  the  time  of  redemption,  he  took 
no  steps  to  notify  the  redemptioner.^* 

§  1203.  In  case  of  usurious  interest. — We  have  already 
seen  ^^  that  a  person  coming  in  to  redeem  from  a  mortgage 
foreclosure  is  entitled  to  be  credited  with  the  statutory  penalty 
on  account  of  usurious  interest,  so  far  as  the  same  has  not 


^2  Coombe  v.  Jordan,  3  Bland  Ch.  chased    the    property    at    execution 

(Md.)   284,  22  Am.  Dec.  236.  sale  for  the  amount  appearing  to  be 

^^  Lee  V.  Stone,  5  Gill  &  J.  (Md.)  due  upon  the  judgment  and  costs, 

1.  23  Am.  Dec.  589.  the    court    held    that  a  junior   in- 

^^  Day   V.    Cole,    44    Iowa,    452;  cumbrancer  was  entitled  to  redeem 

Dodge    v.    Kennedy,   93    Mich.    547,  upon  payment  of  the  amount  bid  at 

53  N.  W.  795.  the   sale.     Day  v.   Cole,    44    Iowa, 

Thus  in  case  where,  in  the  decree  452. 

of    foreclosure,    the    note    was,    by  ^^  Dodge    v.    Kennedy,   93    Mich, 

mistake,    assessed    at   less   than    its  547,  53  N.  W.  795. 

true  amount,  and  the  plaintiff  pur-  ^^  See  ante,  §  1178. 


§     1205]  REDEMPTION.  1601 

been  paid ;  but  no  deduction  from  the  incumbrance  can  be 
made  for  usurious  interest  already  paid  by  the  former  owner." 
The  assignee  of  equity  of  redemption  in  case  of  a  mort- 
gage tainted  with  usury  is  entitled  to  the  aid  of  equity  to 
redeem  proffering  to  pay  the  mortgage  debt  and  simple  interest 
thereon,  or  by  bringing  the  same  into  court  to  be  paid  to  the 
mortgagee." 

§  1204.  Sum  paid  to  protect  title. — When  a  mortgagee 
has  been  compelled  to  pay  additional  sums  of  money  to  protect 
the  estate  from  forfeiture  in  consequence  of  the  laches  of  the 
mortgagor,  to  redeem,  such  mortgagor  and  those  claiming 
under  him  must  repay  such  additional  sums.^^  Thus  such 
mortgagee  will  be  allowed  for  any  taxes  which  may  have  been 
paid  by  him  upon  the  land,^°  as  well  as  the  amount  of  money 
paid  by  such  mortgagee  to  protect  his  interest  and  to  redeem 
said  land  from  a  prior  sale  for  delinquent  taxes ;  the  amount 
paid  for  such  redemption  being  a  lien  upon  the  land  as  against 
one  who  redeems  from  him,  on  personal  liability  of  the 
holder  of  the  legal  title  for  the  taxes  not  affecting  the  land.^^ 

§  1205.  Permanent  improvements — To  be  paid  for, 
when. — It  is  a  well  settled  principle  that,  when  one  who 

17  Perrine  v.  Paulson,  53  Mo.  309.  21  Gable  v.   Seibin,    137   Ind.    155, 
See   Kirkpatnck  v.  Smith,  55   Mo.  36  N.  E.  844.    See  ante,  §  1185. 
389.  Redemption    from    tax     sale     by 

18  Banks  V.  McClellen,  24  Md.  62,  mortgagee  after  the  sale  under  the 
87  Am.  Dec.  594.  mortgage  is  held  in  some  states  not 

19  Gable  v.  Seibin,  137  Ind.  155.  to  entitle  the  mortgagee  to  recover 
36  N.  E.  844;  Goodrich  v.  Frieders-  the  sums  paid  on  such  tax  redemp- 
dorff,  27  Ind.  308;  Williams  v.  tion.  Skilton  v.  Roberts,  129  Mass. 
Hilton,  53  Me.  547,  58  Am.  Dec.  309;  Nopson  v.  Morton,  20  Minn. 
727;  Skilton  v.  Roberts,  129  Mass.  263. 

309.      See  Bourgeois   v.    Gapen.  58          But  these  cases  are  not  regarded 

Neb.  364,  78  N.  W.  639.  as  sound  in  principle,  the  tax  certifi- 

20  Goodrich  v.  Friedersdorff,  27  cate  being  simply  a  transfer  of  the 
Ind.  308.  lien  and  not  a  payment  of  the  taxes. 


See  ante,  §  1185 


Mortg.  Vol.  II.— 101. 


1602  MORTGAGE   FORECLOSURES.  [§    1205 

should  have  been  made  a  party  is  omitted  from  judicial  pro- 
ceedings, the  rights  of  such  omitted  person  remain  precisely 
as  they  were  before  the  proceedings  were  instituted;  they  are 
neither  enlarged  nor  diminished  thereby. ^^  Consequently,  the 
obligation  of  such  party  redeeming  to  pay  for  improvements 
will  not  be  affected  by  such  sale  unless  the  party  seeking  to 
redeem  has  been  guilty  of  some  act  or  laches  in  relation  to 
the  matter.  The  general  rule  in  equity  is  that  a  mortgagor 
seeking  to  redeem  from  a  mortgagee  cannot  be  required  to 
pay  for  permanent  improvements.^'  But  there  are  exceptions 
to  this  general  rule  in  those  cases  where  it  would  be  inequit- 
able or  unjust  to  enforce  it,  as  where  the  party  takes  posses- 
sion in  good  faith  under  the  belief  that  he  is  sole  owner,  with 
the  consent,  expressed  or  implied,  of  the  mortgagor  or  junior 
lien  holder,  or  where  they  have,  for  a  considerable  length  of 
time,  failed  to  assert  their  right  to  redeem,  to  permit  this  to 
be  done,  except  on  condition  that  permanent  improvements  be 
paid  for ;  ^*  and  the  fact  that  the  purchaser  had  constructive 
notice  of  the  rights  of  the  junior  lienholder  is  immaterial.^* 
In  those  cases  where  the  mortgagor  or  owner  of  the  equity 
of  redemption,  or  a  junior  lienholder,  redeems  after  fore- 
closure and  sale,  to  which  he  was  not  made  a  party,  under 
such  circumstances  as  to  entitle  the  purchaser  who  has  en- 

^^  McGough  v.  Sweetzer,  97  Ala.  ton  Mut.  Loan  Assoc.  68  Iowa,  326, 

361,  12  So.  162,  19  L.R.A.  470.  27    N.    W.    271 ;    Montgomery    v. 

^American  Buttonhole,  etc.   Co.  Chadwick,  7   Iowa,    114;   Bacon   v. 

V.  Burlington  Mut.  Loan  Assoc.  68  Cottrell,   13  Minn.   194;  Mickles  v. 

Iowa,  326,  27    N.    W.   271;    Mont-  Dillaye,  17  N.    Y.    80;    Greene    v. 

gomery  v.  Chadwick,  7  Iowa,   114;  Dixon,    9    Wend.     (N.    Y.)     485; 

Moore  v.   Cable,   1   John.   Ch.    (N.  Gillis  v.  Martin,  2  Dev.  (N.  C.)  Eq. 

Y.)   384;  Lynch  v.  Ryan,  137  Wis.  470,  25  Am.  Dec.  729.     See  Parnelt 

13,  129  Am.  St.  Rep.  1040,  118  N.  v.  Goff,  122  Pac.  653  (Okla.)  ;  En- 

W.  174.     See  also  Shelley,  as  ex'r  sign  v.  Batterson,  68  Conn.  298,  36 

etc.  V.  Cody,  187  N.  Y.  166,  79  N.  Atl.  51. 
E.  994.  ^^  American  Buttonhole,  etc.   Co. 

^^  Roberts  v.  Fleming,  53  111.  198;  v.  Burlington  Mut.  Loan  Assoc.  68 

Frost  V.  Davis,  31  Ind.  34;  Ameri-  Iowa,  326,  27  N.  W.  271;  Mickles 

can  Buttonhole,  etc.  Co.  v.  Burling-  v.  Dillaye,  17  N.  Y.  80. 


§    1206]  REDEMPTION.  1603 

tered  into  possession  to  be  paid  the  value  of  improvements 
made  by  the  purchaser,  such  redemptioner  will  be  entitled 
to  offset  against  the  value  of  such  improvements  the  rents 
and  profits  received  by  the  purchaser.^^ 

§  1206.  Rents  and  profits — Applicable  on  sum  payable, 
when. — The  question  of  accounting  for  rents  and  prof- 
its on  redemption  having  already  been  discussed  in  the  chapter 
on  terms  and  conditions  on  which  redemption  may  be 
allowed,^'  it  remains  but  to  consider  when  the  redemptioner  is 
entitled  to  have  rents  and  profits  applied  on,  or  deducted  from, 
the  sum  payable  on  redemption.  We  have  already  seen  ^*  that 
where  improvements  of  a  permanent  character  have  been 
made  on  the  land  by  the  purchaser,  under  such  circumstances 
that  he  is  entitled  to  be  compensated  therefor,  the  redemp- 
tioner is  entitled  to  have  deducted  from  this  amount  the  rents 
and  profits  the  property  would  reasonably  have  earned. 

The  general  rule  is  that  the  mortgagor  is  entitled  to 
redeem  without  paying  rent,  where  he  has  been  permitted 
to  remain  in  possession  of  the  mortgaged  premises ;  ^^  but 
where  the  mortgagee  has  taken  and  received  the  rents  and 
profits  of  the  mortgaged  premises,  on  redemption,  the  mort- 
gagor is  entitled  to  have  applied  in  reduction  of  the  sum  to- 
be  paid  the  net  proceeds  of  such  rents  and  profits  as  were 
received,  or  as  might  have  been  received  by  the  exercise  of 

26  See  McGough  v.  Sweetzer,  97  412;  Denton  v.  Nanny,  8  Barb.  (N. 

Ala.  361,  12  So.  169,  19  L.R.A.  470;  Y.)    618;   Ross    v.    Boardman,    22 

McCabe  v.  Bellows,  73  Mass.   148.  Hun  (N.  Y.)  527. 

66     Am.      Dec.    467;     Newton    v.  2' See  anf^,  §  1183. 

Cook,    70    Mass.     (4     Gray)      46;  28  See  a«/^,  §§  1189,  1195. 

Brown    v.    Lapham,    57    Mass.     (3  ^^  Merritt   v.   Hosiner,    77    Mass. 

Cush.)    554;  Gibson  v.  Crehore,  22  (11    Gray)    276,   71   Am.    Dec.    713. 

Mass.    (5    Pick.)    146;    Van  Duyne  See  Harrison  v.  Wyse,  24  Conn.  1, 

V.  Shann,  39  N.  J.  Eq.   (12  Stew.)  63  Am.  Dec.  151. 
6;  Mills  V.  Van  Voorhies,  20  N.  Y. 


1604 


MORTGAGE    FORECLOSURES. 


[§  1206 


due  diligence,'"  together  with  interest  thereon,  in  some  states. '' 
but  in  other  states  not.^^    But  a  mortgagee  in  possession  will 


^'^  Harrison  v.  Wyse,  24  Conn.  1, 
63  Am.  Dec.  151.  See  Powell  v. 
Williams,  14  Ala.  476,  48  Am.  Dec. 
105 ;  Hogan  v.  Stone,  1  Ala.  496,  35 
Am.  Dec.  39;  Benham  v.  Rowe,  2 
Cal.  387,  56  Am.  Dec.  342 ;  Breckin- 
ridge V.  Brooks,  2  A.  K.  Marsh. 
(Ky.)  335,  12  Am.  Dec.  401; 
Schaeffer  v.  Chambers,  6  N.  J.  Eq. 
(2  Halst.)  548,  47  Am.  Dsc.  211; 
Gillis  V.  Martin,  2  Dev.  (N.  C.)  Eq. 
470. 

American  Freehold  Land  Mort- 
gage Co.  V.  Pollard,  132  Ala.  155,  32 
So.  630;  Miller  v.  Peter,  158  Mich. 
336,  122  N.  W.  780.  See  National 
Mutual  Building  &  Loan  Asso'c  v. 
Houston,  81  Miss.  386,  32  So.  911; 
Long  V.  Richards,  170  Mass.  120,  64 
Am.  St.  Rep.  281,  48  X.  E.  1083; 
Eldriedge  v.  Hoefcr,  52  Or.  241, 
■96  Pac.  1105.  See  also  Bourgeois 
V.  Gapen,  58  Neb.  364,  78  N.  W.  639. 
■where  the  property  had  no  rental 
value. 

A  mortgagee  in  possession  must 
account  not  only  for  the  rents,  but 
for  the  damages  and  costs  recovered 
in  ejectment  suit,  and  for  what  the 
mortgagor  would  have  realized 
from  the  crops  growing  on  the 
premises  at  the  time  of  the  ouster, 
less  the  probable  cost  of  cultivation. 
Powell  V.  Williams,  14  Ala.  476,  48 
Am.  Dec.  105. 

A  mortgagee  should  not  be 
charged  with  rents  which  accrue 
from  improvements  he  made  upon 
the  mortgaged  premises.  Gillis  v. 
Martin,  2  Dev.  (N.  C.)  Eq.  470. 

31  Breckinridge  v.  Brooks,  2  A. 
K.  Marsh.  (Ky.)  335,  12  Am.  Dec. 
401;  Gibson  v.  Crehore,  22  Mass  (5 


Pick.)  146;  Kinkead  v.  Peet,  132 
N.  W.  1095.   (Iowa). 

32  Hogan  v.  Stone,  1  Ala.  496,  35 
Am.  Dec.  39 ;  Schaffer  v.  Chambers, 
6  N.  J.  Eq.  (2  Halst.)  547,  47  Am. 
Dec.  211. 

In  the  case  of  Hogan  v.  Stone,  1 
Ala.  496,  35  Am.  Dec.  39,  the  court 
considered  the  question  of  interest 
on  rents,  and  said,  among  other 
things :  "In  England,  where  inter- 
est is  not  charged  on  the  account 
taken  of  the  rents  and  profits,  un- 
less there  be  some  peculiarity  in 
the  case ;  as  where  no  interest  is  in 
arrears,  when  the  mortgagee  takes 
possession :  Shepard  v.  Elliott,  4 
Madd.  254 ;  or  where  the  rent  great- 
ly exceeds  the  interest  of  the  mort- 
gage debt ;  in  which  event  annual 
rents  are  directed  to  be  made,  and 
after  the  payment  of  the  interest, 
the  excess  is  applied  to  sink  the 
principal :  See  the  cases  cited  in 
which  this  principle  is  established, 
in  Powell  on  Mortgages,  949a,  and 
Coote  on  Mortgages,  556.  So  in 
the  case  of  Breckinridge  v.  Brooks, 
2  A.  K.  Marsh.  (Ky.)  340,  12  Am. 
Dec.  401,  which  was  elaborately  con- 
sidered on  a  rehearing,  it  was  de- 
termined that  the  mortgagee  in  pos- 
session was  not  chargeable  with  in- 
terest on  rent  received.  These  de- 
cisions, in  our  opinion,  are  founded 
in  justice.  The  mortgagor  can,  at 
any  time,  regain  the  possession  of 
the  property  by  paying  the  debt. 
If  he  does  not  do  so,  and  the  mort- 
gagee is  at  the  trouble  of  paying 
himself  it  is  not  reasonable  that 
he  should  be  charged  with  interest 
on    the    amount    thus    received,    in 


1206] 


REDEMPTION. 


1605 


not  be  liable  for  not  leasing  the  property  differently,  and  for 
rents  and  profits  he  might  thus  have  received,  where  he  is 
not  charged  with  negligence  or  improper  conduct.'^  All  that 
is  required  of  a  mortgagee  in  possession  of  the  property  is 
such  management  as  a  prudent  man  would  exercise  over  his 
own  property,^*  and  he  is  bound  to  the  same  diligence  to  make 
the  property  productive  that  such  owner  would  use  ^^  and  he 
must  not  permit  or  commit  waste. ^^ 


small  sums  and  at  remote  intervals, 
which  are  never  of  so  much  value 
as  when  the  whole  amount  is  re- 
ceived at  once. 

"In  Gibson  v.  Crehore,  22  Mass. 
(5  Pick.)  146,  the  court  charged  the 
mortgagee  in  possession  with  in- 
terest on  the  rents  and  profits ; 
but  that  case  was  decided  on  its 
own  circumstances,  the  court  con- 
sidering that  the  widow  was  pre- 
cluded by  the  purchase  of  the  mort- 
gage from  claiming  her  dower  with- 
out filing  a  bill  to  redeem,  and  the 
court  declined  determining  the  gen- 
eral rule.  But,  in  that  case,  it  is  to 
be  observed  that  five  per  cent,  com- 
mission was  allowed  on  the  rents 
and  profits  received  by  the  assignee 
of  the  mortgage.  There  are  pecu- 
liar circumstances  in  this  case  which 
would  make  it  improper  to  charge 
interest  on  the  rents  received  as 
the  defendant  was  in  possession  un- 
der a  purchase ;  and  is  only  a  con- 
structive mortgagee  in  possession  ; 
but  we  prefer  to  rest  the  case  on 
the  general  rule  applicable  to  such 
cases,  which  is,  that  a  mortgagee  in 
possession  is  not  chargeable  with 
interest  on  the  rents  received  as 
the  estate,  unless  there  be  some  cir- 
cumstances connected  with  the 
transaction  makmg  it  proper  he 
should  be  so  charged." 


^^  Bcnhani  v.  Rowe,  2  Cal.  387.  56 
Am.  Dec.  342. 

^^  Ben  ham  v.  Rowe,  2  Cal.  387, 
56  Am   Dec.  342. 

^^Shaeffer  v.  Chambers,  6  N.  J. 
Eq.  (2  Halst.)  548,  47  Am.  Dec. 
211. 

2^  Schacffer  v.  Chambers,  6  X.  J. 
Eq.  (2  Halst.)  548,  47  Am.  Dec. 
211;  Yotile  v.  Richards,  1  N.  J.  Eq. 
(1  Saxt.)  534,  23  Am.  Dec.  722; 
Kinkead  v.  Pcct.  182  N.  W.  1095. 
(Iowa)  ;  American  Freehold  Land 
Mortgage  Co.  v.  Pollard,  132  Ala. 
155,  32  So.  630. 

In  the  case  of  Shaeffer  v.  Cham- 
bers, 6  N.  J.  Eq.  (2  Halst.)  547, 
47  Am.  Dec.  211,  in  discussing  the 
question  of  diligence,  the  court  say : 
"Is  it  sufficient  for  the  mortgagee, 
thus  in  possession,  in  order  to  re- 
lieve himself  from  any  charge  for 
rents  and  profits  for  the  years  dur- 
ing which  the  premises  were  thus 
vacant,  simply  to  say  that  he  could 
not  rent  them ;  or  should  he  be  held 
to  show  proper  diligence  to  procure 
a  tenant?  Is  the  mortgagor  to 
prove  that  he  might  have  rented  it 
but  for  his  wilful  default,  as  that 
he  turned  out  a  sufficient  tenant,  or 
refused  to  receive  a  sufficient  ten- 
ant, as  would  seem  to  be  held  in 
Anonymous.  1  Vern.  45 ;  or  does 
the  fact  of  the  premises  being  left 


1606  MORTGAGE    FORECLOSURES.  [§    1207 

In  those  cases  where  the  purchaser  at  a  foreclosure  sale 
removes  a  house  he  has  put  upon  the  property,  without  in- 
jury to  the  premises,  before  redemption  is  made,  he  cannot 
be  compelled  to  account  to  the  redemptioner  for  the  rents  and 
profits  of  such  house.^' 

It  has  been  held  in  Massachusetts  that  the  occupation  of 
a  house  on  mortgaged  premises  by  a  husband  and  wife,  the 
latter  being  the  mortgagee,  under  an  agreement  between  the 
husband  and  the  wife's  mother,  who  is  supposed  to  be  the 
owner  of  part  of  the  premises,  is  not  such  a  "possession  of 
the  premises"  by  the  mortgagee,  within  the  meaning  of  the 
statute  of  that  state,^*  as  will  entitle  the  mortgagor,  on  a 
bill  in  equity  to  redeem,  to  have  the  rent  of  the  tenement 
applied  towards  the  payment  of  the  mortgage  debt.^^ 

§  1207.  Costs  on — Atomey's  fees. — We  have  already 
seen  ^°  that  as  one  of  the  terms  or  conditions  of  letting  in  the 
mortgagor  to  redeem,  the  court  may  require  the  payment 
of  the  costs  of  the  suit.  The  general  rule  is  that  the  mort- 
gagor coming  in  to  redeem  must  pay  the  costs  of  the  fore- 
closure suit.^^  But  we  have  already  seen  that  an  allowance  for 
attorney's  fee,  stipulated  for  in  the  mortgage,  is  not  one  of 

vacant  throw   upon  the  mortgagee  17    N.    W.    900.      See    Spur  gen    v. 

the   burden   of   proving   reasonable  Adamson,  62  Iowa,  661,   18  N.  W. 

diligence    to    procure    a    tenant,    as  293. 

seems    to    be    held    in    Metcalf    v.  38  Mass.   Gen.   Stat.  c.   140,   §   IS. 

Champion,  1  Moll.  238?     It  seems  ^^  San  ford   v.    Pierce,    126    Mass. 

to  me,  that  it  will  not  do  for  the  146. 

mortgagee,  having  thus  taken  pos-  *o  See  ante,  §  1184. 

session,  to  fold  his  arms  and  use  no  41  Blum  v.  Mitchell,  59  Ala.  535 ; 

means  to  procure  a  tenant ;   and  I  Whitcomb  v.  Harris,  90  Me.  206,  38 

am  disposed  to  think  he  ought  to  be  Atl.     138.       See    National    Mutual 

held  to  show  reasonable  diligence  to  Building  &■  Loan  Ass'c  v.  Houston, 

procure  a  tenant.    But  at  all  events,  81  Miss.  386,  32  So.  911.     See  also 

if  the  farm  and  buildings  are  not  Lynch    v.   Ryan,    137   Wis.    13,    129 

rented,  he  ought  to  cause  the  farm  Am.  St.  Rep.  1040,  118  N.  W.  174. 

to  be  tilled,  and  that  in  a  husband-  But  see  Rodman  v.  Quick,  211  111. 

like  manner."  546,  71  N.  E.  1087. 
'^'^  Poole  V.  Johnson,  62  Iowa,  611, 


§    1207]  REDEMPTION.  1607 

the  items  of  costs  that  can  be  charged  to  the  redemptioner ;  *^ 
and  where  such  a  fee  is  paid,  under  protest,  on  redemption 
from  a  statutory  foreclosure,  it  may  be  recovered  back.^'  The 
reason  for  this  is  said  to  be  because  a  stipulation  in  a  mort- 
gage, fixing  in  advance  a  gross  allowance  for  the  attorney's 
fee  in  the  event  of  foreclosure  at  law,  is  against  public  policy 
and  cannot  be  enforced.** 

42  See  ante,  §  1187.  **  Vosburgh  v.  Lay,  45  Mich.  455. 

43  Vosburgh  v.  Lay,  45  Mich.  455,      8  N.  W.  91. 
8  N.  W.  9L 


CHAPTER  XLIV. 

REDEMPTION— CONTRIBUTION  ON. 

§  1208.  Contribution — Generally. 

§  1209.  Same — Where  mortgaged  land  is  sold  in  parcels. 

§  1210.  Same — By  subsequent  grantee. 

§  1211.  Same — By  widow. 

§  1212.  Same— ^Redemption  without,  when. 

§  1208.  Contribution — Generally. — By  contribution  is 
understood  the  share  provided  by  or  due  from  one  or 
several  persons  to  assist  in  discharging  a  common  obhga- 
tion,  or  in  advancing  a  common  enterprise.*^  In  case  of 
redemption  from  mortgage,  either  before  or  after  foreclosure, 
contribution  means  the  payment  by  each  of  two  or  more  per- 
sons who  are  interested  in  the  equity  of  redemption,  to  an- 
other person  interested  in  the  equity  of  redemption,  who  has 
redeemed  the  premises  of  his  proportionate  part  of  the  money 
necessarily  expended  in  effecting  such  redemption,  and  applies, 
alike,  where  the  equities  existing  between  tlie  parties  are  equal*® 
or  unequal.*'  Hence,  any  person  with  an  interest  in  land  sub- 
ject to  a  mortgage,  is  entitled  to  redeem  from  such  mortgage 
and  call  upon  other  persons  interested  in  the  equity  of  redemp- 
tion for  contribution.*^ 

« Anderson's  Law  Diet.  251;  II.  (N.    Y.)    245,    7    Am.     Dec.    499; 

Cent.  Die.  &  Cyc.  1236.  Cheesebrough    v.    Millard,    1    Jolm. 

^^  Chase  v.    Woodbury.  60   Mass.  Ch.   (N.  Y.)   409,  7  Am.  Dec.  494; 

(6  Cush  )    143.  Stroud   v.    Casey,   27    Pa.    St.   471; 

^"^  Young   v.    IVilliams,    17    Conn.  IV heeler  v.  IVillard,  44  Vt.  640;  Mc- 

393;  Kingsbury  v.  Buckner,  70  111.  Laughlin    v.    Ctirts,    27    Wis.    644; 

514;   Beal  v.   Barclay,   10  B.    Mon.  Herbert's  Case,  3  Co.  14;  Harris  v. 

(Ky.)    261;    Barley   v.    Myrick,   50  Inglcdcn,  2,  Yt.  ^ms.  9%,  99. 

Me.   171;  Aiken  v.  Gale,  Z7  N.  H.  '^^  Palk  v.   Clinton,   12  Ves.  48,  8 

501 ;  Stevens  v.  Cooper,  1  John.  Ch.  Rev.  Rep.  283.     See  Lyons  v.  Rob- 

1608 


1209] 


REDEMPTION. 


1609 


§  1209.  Same — Where  mortgaged  land  is  sold  in  par- 
cels.— The  general  rule  is  that  tracts  of  land  sold  by  a 
mortgagor  after  the  execution  of  the  mortgage  are  liable 
for  the  mortgage  debt  in  the  inverse  order  of  alienation,*' 
and  this  is  equally  true  whether  the  land  as  originally  mort- 
gaged, consisted  of  separate  tracts  of  land,^°  or  of  a  single 
tract  broken  up  into  lots  and  sold  at  various  times,  to  different 
parties ;  "  the  same  is  true  where  the  mortgagor  conveys  the 
entire  mortgaged  tract  to  a  grantee  who  afterwards  recon- 


inson,  45  Conn.  513;  Johnson  v. 
Candage,  31  Me.  28;  Ney  v.  Patter- 
son. 35  Mich.  413;  Jennings  v.  Jor- 
dan, L.  R.  6  App.  Cas.  698,  51  L. 
J.  Ch.  129,  5  L.  T.  593. 

^^  Mobile  Marine  Dock  &  Mut. 
Ins.  Co.  V.  Huder,  35  Ala.  713 ;  Bank 
V.  Dundas,  10  Ala.  661 ;  Haskell  v. 
State,  31  Ark.  101 ;  Rifch  v.  Eichel- 
berger,  13  Fla.  169;  Sidener  v. 
White,  46  Ind.  595  ;  Kendall  v.  Hod- 
gins,  7  Abb.  (N.  Y.)  Pr.  317,  1 
Bosw.  (N.  Y.)  67;  Kellogg  v.  Rand, 
11  Paige  Ch.  (N.  Y.)  59;  Skeel  v. 
Spraker.  8  Paige  Ch.  (N.  Y.)  195; 
Kicrsted  v.  Avery,  4  Paige  Ch.  (N. 
Y.)  13;  James  v.  Hubbard,  1  Paige 
Ch.  (N.  Y.)  233;  Martin  v.  Wag- 
cner,  1  T.  &  C.  (N.  Y. )  513; 
Steer e  v.  Steer e,  7  Week.  Dig.  (N. 
Y.)  433;  Reynolds  v.  Tooker,  18 
Wend.    (N.  Y.)   593. 

^0  Mobile  Marine  Dock  &  Mut. 
Ins.  Co.  V.  Huder,  35  Ala.  713 ; 
Cummings  v.  Cummings,  3  Ga.  (3 
Kelly)  460;  Wikoff  v.  Dows.  4  N. 
J.  Eq.  (3  H.  W.  Or.)  224;  Dutton 
V.  Updike.  3  N.  J.  Eq.  (2  H.  W. 
Gr.)  125;  Shannon  and  MarciUis. 
1  N.  J.  Eq.  (1  Saxt.)  413;  Clowes 
V.  Dickenson,  5  John.  Ch.  (N.  Y.) 
235;  Kelly  v.  Rand,  11  Paige  Ch. 
(N.  Y.)  59;  Schryver  v.  Teller,  9 
Paige   Ch.    (N.   Y.)    173;    Keel   v. 


Spraker.  8  Paige  Ch.  181 ;  Guion  v. 
Knapp,  6  Paige  Ch.  (N.  Y.)  35,  29 
Am.  Dec.  741;  Gouverneurv.  Lynch, 
5  Paige  Ch.  (N.  Y.)  300;  Com- 
mercial Bank  V.  Western  Reserve 
Bank.  11  Ohio.  444,  38  Am.  Dec. 
739;  Stoney  v.  Shiiltz,  1  Hill  (S. 
C.)  Eq.  500,  27  Am.  Dec.  429;  Con- 
rad V.  Harrison,  3  Leigh  (Va.)  532. 
51  Mobile  Marine  Dock  &  Mut. 
Ins.  Co.  V.  Huder,  35  Ala.  713; 
Bank  V.  Dundas,  10  Ala.  661 ;  San- 
ford  V.  Hill.  46  Conn.  42 ;  Ritch  v. 
Eichclbcrger.  13  Fla.  169;  Cum- 
niiiig  V.  Ciininiing,  3  Ga.  (3  Kelly) 
460;  Meacham  v.  5f^e/^,  93  111.  135; 
Halm  V.  Behrnian,  72>  Ind.  120; 
JJ'indsor  v.  Evans,  72  Iowa,  692,  34 
N.  W.  481 ;  Sheperd  v.  Adams,  32 
Me.  63 ;  Beard  v.  Fitzgerald,  105 
Mass.  134;  George  v.  Wood,  91 
Mass.  (9  Allen)  80,  85  Am.  Dec. 
741 ;  Kilborn  v.  Robbin,  90  Mass.  (8 
Allen)  466;  George  v.  /^<?«/.  89 
Mass.  (7  Allen)  16;  Bradley  v. 
Gror^^.  84  Mass.  (2  Allen)  392; 
C/zaj^  V.  Woodbury,  60  Mass.  (6 
Cush.)  143;  Allen  v.  C/ar^.  34  Mass. 
(17  Pick.)  47;  Hall  v.  Edwards.  43 
Mich.  473.  5  N.  W.  652;  Johnson 
V.  Williams.  14  Minn.  260;  Brown  v. 
Simmons.  44  X.  H.  475;  /-/(7<?.f  v. 
Coult.  30  N.  J.  Eq.  (3  Stew.)  40; 
Co/f.y   V.    Appleby,  87    X.   Y.    114; 


1610 


MORTGAGE    FORECLOSURES, 


[§  1210 


veys  to  different  parties  at  different  times  the  whole  or  a 
portion  thereof. ^^ 

The  equity  existing  between  the  purchasers  at  different  times 
from  the  mortgagor  is  one  which  the  mortgagee  must  re- 
gard where  he  has  either  actual  or  constructive  notice  there- 
of ^^  and  he  will  not  be  permitted  to  in  any  way  interfere  with 
his  equity  by  releasing  a  part  of  the  mortgaged  premises 
which,  in  equity,  is  primarily  liable  for  the  payment  of  his 
debt.^* 

§  1210.  Same — By  subsequent  grantee. — The  right  of 
contribution  from  a  subsequent  grantee  for  a  portion  of  the 
mortgaged  premises  cannot  be  settled  in  a  suit  in  equity  to 
redeem  from  the  mortgagor,  unless  such  grantee  is  made  a 
party  to  the  bill." 

§  1211.  Same — By  widow. — The  wife  must  contribute 
ratably  to  a  redemption  of  a  mortgage  already  on  the  prem- 
ises.    Where  the  heir  redeems  and  pays  off  a  mortgage,  and 


Hopkins  V.  W alley,  81  N.  Y.  77; 
Carpenter  v.  Cooms,  20  Pa.  St.  222; 
Meng  v.  Houser,  13  Rich.  (S.  C.) 
Eq.  210;  Miller  v.  Rogers,  49  Tex. 
398;  Root  v.  Collins,  H  Vt.  173; 
Jones  V.  Myrick,  8  Gratt.  (Va.) 
179;  Aiken  v.  Milwaukee  &  St.  P. 
R.  Co.  37  Wis.  469. 

62  Wikoff  V.  Dows,  4  N.  J.  Eq. 
(3  H.  W.  Gr.)  224;  Guion  v. 
Knapp,  6  Paige  Ch.  (N.  Y.)  35. 
29  Am.   Dec.  741. 

An  exception  to  this  rule  seems 
to  prevail  in  Iowa  (Barney  v. 
Myers,  28  Iowa,  472)  and  Ken- 
tucky (Poston  V.  Eubank,  3  J.  J. 
Marsh.  (Ky.)  42),  where  it  is  held 
that  the  parcels  of  land  must  con- 
tribute ratably. 

In  other  states  it  is  held  that 
where  the  conveyance  is  made  by 


the  mortgagor  without  warranty, 
the  grantors  must  contribute  ratably. 
See  Erlinger  v.  Bui,  7  111.  App.  440; 
Aiken  v.  Gale,  37  N.  H.  501 ;  Car- 
penter V.  Cooms,  20  Pa.  St.  222. 

53  George  v.  Wood,  91  Mass.  (9 
Allen)  80,  85  Am.  Dec.  741 ;  Park- 
man  V.  Welch,  36  Mass.  (19  Pick.) 
231;  Brown  v.  Simmons,  44  N.  H. 
475. 

^^  Jordan  v.  Hamilton  County 
Bank,  11  Neb.  499.  9  N.  W.  654; 
Hoyt  V.  Bramhall.  19  N.  J.  Eq.  (4 
C.  E.  GrO  571,  97  Am.  Dec.  687; 
Stuyvesant  v.  Hall.  2  Barb.  (N.  Y.) 
156;  Guion  v.  Knapp,  6  Paige  Ch. 
(N.  Y.)  35,  29  Am.  Dec.  741. 

^^  Lamb  v.  Montague.  112  Mass. 
354;  George  v.  Wood,  91  Mass.  (9 
Allen)  80.  85  Am.  Dec.  741. 


§  1211] 


REDEMPTION. 


1611 


she  files  a  bill  against  him  for  dower,  she  should  contribute 
by  paying,  during  her  life,  to  the  heir,  one-third  of  the  interest 
on  the  amount  paid  by  him,  to  be  computed  by  a  master  from 
the  time  of  such  payment.^^  But  where  that  is  inconvenient 
or  embarrassing,  the  value  of  such  annuity  may  be  directed 
to  be  deducted  from  the  amount,  her  age  and  health  con- 
sidered." But  in  no  manner  is  she  to  be  charged  more  than 
the  proportional  part  which  she  should  be  required  to  pay.^^ 
It  is  thought,  however,  that  where  the  case  presents  no  ques- 
tion between  the  widow  and  the  owner  of  the  equity  of  re- 
demption, who  has  redeemed  in  fact,  or  who  is  to  be  regarded 
as  having  done  so  by  equitable  construction,  no  question  of 
contribution  arises  for  the  reason  that  there  has  been  no  re- 
demption.    In  those  cases,  however,  where  the  equity  of  re- 


56  Swaine  v.  Ferine,  S  John.  Ch. 
(N.  Y.)  482,  9  Am.  Dec.  318.  See 
McMahon  v.  Russell,  17  Fla.  705; 
Gibson  v.  Crehore,  22  Mass.  (5 
Pick.)  146;  Pollard  v.  Noyes,  60  N. 
H.  185;  Morris  v.  Morrison,  45  N. 
H.  494;  Woods  v.  Wallace,  30  N.  H. 
384;  Hastings  v.  Stevens,  29  N.  H. 
564;  Rossiter  v.  Cossit,  15  N.  H. 
38;  Cass  v.  Martin,  6  N.  H.  25; 
Denton  v.  Nanny,  8  Barb.  (N.  Y.) 
618;  Gunning  v.  Carman,  3  Redf. 
(N.  Y.)  71. 

The  widow  having  only  a  life  in- 
terest in  the  dower,  say  the  court 
in  the  case  of  Swaine  v.  Ferine, 
5  John.  Ch.  (N.  Y.)  482,  9  Am.  Dec. 
318,  payment  of  the  entire  one-third 
of  the  debt  would  be  unjust.  It 
would  be  making  her  pay  for  a  life 
estate  equally  as  if  it  was  an  estate 
in  fee.  The  more  accurate  rule 
would  appear  to  be,  that  she  should 
"keep  down  one-third  of  the  in- 
terest of  the  mortgage  debt,  by 
paying  during  her  life,  to  the  de- 
fendant,  the    interest   of   one-third 


part  of  the  aggregate  amount  of 
the  principal  and  interest  of  the 
mortgage  debt  paid  by  the  defend- 
ant, to  be  computed  from  the  date 
of  such  payment." 

"As  it  would  be  inconvenient  and 
embarrassing  to  charge  her  with 
such  an  annuity,  then  let  the  value 
of  such  annuity  from  the  plaintiff 
(her  age  and  health  considered)  be 
ascertained  by  one  of  the  masters 
of  the  court,  and  be  deducted  from 
the  amount  of  the  rents  and  profits 
so  coming  to  her ;  and  if  that  value 
should  exceed  the  amount  of  the 
rents  and  profits  so  coming  to  her, 
that  then,  the  residue  of  such  value 
be  deducted  from  the  dower  to  be 
assigned  to  her,  out  of  the  house 
and  land  mentioned  in  the  bill." 

57  Swaine  v.  Ferine,  5  John.  Ch. 
(N.  Y.)  482,  9  Am.  Dec.  318;  Gun- 
ning V.  Carman,  3  Redf.  (N.  Y.) 
71. 

^^Cox  V.  Garst.  105  111.  347; 
Swaine  v.  Ferine,  5  John.  Ch.  (N. 
Y.)  482,  9  Am.  Dec.  318.    See  Selb 


1612  MORTGAGE    FORECLOSURES.  [§    1212 

demption  is  exercised  by  a  purchaser,  the  widow  is  entitled  to 
dower  only  by  contributing  her  portion  of  the  mortgage  debt.^^ 

§  1212.  Same — Redemption     without,     when. — It      is 

said  that  where  one  takes  a  deed  of  warranty  to  a  portion  of 
a  parcel  of  land,  the  whole  of  which  is  subject  to  a  mortgage, 
he  may  maintain  a  bill  in  equity  to  redeem  the  same  against  a 
subsequent  assignee  of  the  mortgage,  without  contribution,  in 
those  cases  where  the  remaining  portion  of  the  land  is  suffi- 
cient to  satisfy  the  mortgage  debt  in  full,  although  such  as- 
signee may  also  have  become  the  owner  of  the  equity  of  re- 
demption of  the  remaining  portion  of  the  land.®"  In  the  case 
of  Bradley  v.  Nathan,"  one  Daniels,  who  was  the  owner  of 
fifteen  acres  of  land,  mortgaged  the  same  to  Godfrey  and 
Mayhew  and  afterwards  conveyed  six  acres  by  deed  of  war- 
ranty to  the  plaintiff.  Subsequently  to  both  of  these  convey- 
ances Daniels  became  insolvent  and  his  right  in  equity  to  re- 
deem the  remaining  nine  acres  was  conveyed  by  his  assignees 
in  insolvency  to  one  Nathaniel  Cheeseman,  who  mortgaged 
the  same  to  the  defendant.  The  defendant  then  procured  an 
assignment  to  himself  of  the  original  mortgage  to  Godfrey 
and  Mayhew  and  entered  to  foreclose  it  for  breach  of  con- 
dition. The  plaintiff  asked  in  his  bill  that  the  defendant  re- 
lease to  him  the  parcel  of  about  six  acres  which  he  held  under 
the  deed  of  warranty  from  Daniels  without  contribution  by 

V    Montague,   102  111.  446;   Hears-  ^'^  Bradley  v.  Nathan,  8A  Mass.  (2 

thorne  v.  Heartsthorne,  2  N.  J.  Eq.  Allen)  392;  Chase  v.  Woodbury,  60 

(1  H.  W.  Gr.)  349;  Russel  v.  Aus-  Mass.  (6  Cush.)  143.    See  Dooley  v. 

tin,  1  Paige  Ch.  (N.  Y.)  102.  Potter,  140  Mass.  49,  59;  Beard  v. 

^^  Trowbridge  V.  Sypher,  55  Iowa  Fitzgerald,   105  Mass.   134;   George 

352,  7  N.  W.  567;  Bank   of  Com-  v.  Wood,  91  Mass.  (9  Allen)  80,  85 

merce  v.  Owens,  31  Md.  327,  1  Am.  Am.  Dec.  741;  Kilborn  v.  Rabbins, 

Rep.  64;    Van   Vronkman  v.  East-  90  Mass.  (8  Allen)  466.  470. 
j/ion,  48  Mass.  (7  Met.)  \57 ;  Swalne  "84  Mass.    (2  Allen)   392. 

V.  Ferine,  5  John.  Ch.  (N.  Y.)  482, 
9  Am.  Dec.  318 ;  Danforth  v.  Smith. 
23  Vt.  247. 


§    1212]  REDEMPTION.  1613 

him  toward  the  first  mortgage.  It  was  admitted  that  the  value 
of  the  nine  acres  was  fully  sufficient  to  satisfy  the  first  mort- 
gage without  contribution  and  the  court  held,  on  the  authority 
of  Chase  v.  Woodbury,^^  that  the  plaintiff  was  entitled  to  the 
decree  prayed  for  in  the  bill. 

«2  60  Mass.  (6  Cush.)  143. 


CHAPTER  XLV. 

REDEMPTION— ACTION  TO  REDEEM. 

§  1213.  Bill  to   redeem — Introductory. 

§  1214.  Same — Accounting  for  rents  and  profits. 

§  1215.  Same — Dismissal   of — Effect. 

§  1216.  Same — Evidence  on. 

§  1217.  Same — Irregularity  waived  by. 

§  1218.  Same — Jurisdiction. 

§  1219.  Same — Multifariousness. 

§  1220.  Same — Requisites   of — Tender. 

§  1221.  Same — Same — In   action  by  grantee. 

§  1222.  Same — Same — In  action  by  junior  lienor. 

§  1223.  Same — Statutory  provisions. 

§  1224.  Same — Time  within  which  to  be  brought. 

§  1225.  Same — When  to  be  brought. 

§  1226.  Defenses — Conveyance  to  mortgagee. 

§  1227.  Same — Conveying  wrong  lot. 

§  1228.  Same — Improvements  with  knowledge. 

§  1229.  Same — Mortgage   fraudulent  as  to   creditors. 

§  1230.  Same — Overdue  second  mortgage. 

§  1231.  Improvements — Allowance  for. 

§  1232.  Receiver  on — When  appointed. 

§  1233.  Parties  to  action — Parties  plaintiff. 

§  1234.  Same — Parties  defendant. 

§  1235.  The    decree — Generally. 

§  1236.  Same — Time  of  redemption  after  decree. 

§  1237.  Same — Same — Extension. 

§  1238.  Same — Where  sold   in  parcels. 

§  1239.  Same — On  bill  by   widow. 

§  1240.  Same — Sale  not   decreed. 

§  1241.  Same — Accounting   for  value. 

§  1242.  Same — Appeal  and  new  trial. 

§  1243.  Costs   on    redemption. 

§  1213.  Bill  to  redeem. — Introductory.— In  those  states 
in  which  the  distinction  between  law  and  equity  is  still  main- 
tained, and  in  the  code  states,  the  remedy  for  enforcing  the 

1614 


§  1214] 


REDEMPTION. 


1615 


right  of  redemption  is  an  equitable  one,  and  governed  by 
equitable  rules. ^^  Where  an  action  to  redeem  from  a  mort- 
gage is  statutory,  it  is  an  action  of  a  nature  sufficiently  equi- 
table to  bring  the  plaintiff  within  the  rule  that  he  who  seeks 
equity  must  do  equity.^*  Thus,  the  amount  of  the  judgment 
against  the  mortgagor,  which  was  a  lien  on  the  land  in  favor 
of  the  mortgagee  at  the  time  of  the  purchase,  must  be  paid, 
as  well  as  the  mortgage  debt  and  the  advances.^^ 

§  1214.  Same — Accounting  for  rents  and  profits. — The 
general  rule  is  that  a  personal  judgment  may  be  given  in  an 
action  to  redeem  from  a  sale  under  the  power  in  a  mortgage, 
and  for  an  accounting  of  the  rents  and  profits,  although  not 
prayed  for  in  the  pleadings.^® 


^  See  Woods  v.  Woods,  66  Me. 
206;  Pearce  v.  Savage,  45  Me.  90; 
Parsons  v.  Welles,  17  Mass.  419; 
Hill  V.  Payson,  3  Mass.  559;  Craft 
V.  Bullard,  1  Smeed  &  M.  Ch. 
(Miss.)  366;  Jackson  v.  Cunning- 
ham, 28  Mo.  App.  354;  Pell  v.  Ul- 
mar,  18  N.  Y.  139;  Douglas  v. 
Woodworth,  51  Barb.    (N.  Y.)   79. 

^'^Shaw  V.  Abbott,  61  N.  H.  254; 
Hinton  v.  Pritcliard,  107  N.  C.  128. 
12  S.  E.  242,  10  L.R.A.  401 ;  Evans 
V.  Pike,  118  U.  S.  241,  30  L.  ed.  234, 
6  Sup.  Ct.  Rep.  1090. 

In  Louisiana,  one  having  an  inter- 
est in  mortgaged  land  who  was  not 
made  a  party  to  a  foreclosure  can- 
not dispossess  the  purchaser  with- 
out offering  to  redeem;  and  his 
remedy,  in  a  federal  court,  is  by 
bill  in  equity  to  redeem,  not  by  an 
action  at  law  for  the  possession. 
Evans  v.  Pike,  118  U.  S.  241,  30  L. 
ed.  234,  6  Sup.  Ct.  Rep.  1090. 

^^  Hinton  v.  Pritcliard,  107  N.  C. 
128,  10  L.R.A.  401,  12  S.  E.  242. 

^^  Johnson  v.  Loftin  (N.  C.)  16 
S.  E.  179,  111  N.  C.  319.    See  Par- 


mer V.  Parmer,  74  Ala.  285;  Ware 
V  Crotty,  66  111.  197 ;  Dinsmore  v. 
Savage,  68  Me.  191;  Parker  v. 
Child,  25  N.  J.  Eq.  (10  C.  E.  Gr.) 
41. 

In  Alabama,  a  mortgagor  is  enti- 
tled to  all  rents  and  profits  accru- 
ing after  tender  of  redemption. 
Parmer  v.  Parmer,  74  Ala.  285. 

In  Maine,  where  a  party  conveyed 
land  with  a  covenant  against  incum- 
brances, and  took  a  mortgage  to 
secure  a  part  of  the  purchase 
money,  on  a  bill  to  redeem,  the 
court  held  that  he  was  not  charge- 
able for  use  and  occupation  by  a 
third  party  holding  possession  with- 
out right  and  without  his  consent. 
Dinsmore  v.  Savage,  68  Me.  191. 

In  New  Jersey,  a  first  mortgagee 
purchasing,  if  the  property  is  re- 
deemed, must  account  for  the  rents 
and  profits  during  his  occupation  of 
the  premises,  and  cancel  any  mort- 
gage given,  by  himself  thereon, 
after  he  had  received  his  deed. 
Parker  v.  Child,  25  N.  J.  Eq.  (10 
C.  E.  Gr.)  41. 


1616 


MORTGAGE    FORECLOSURES. 


[§   1214 


Hence  on  a  bill  to  redeem  from  a  mortgage,  where  the 
mortgagee  has  been  in  possession,  the  latter  will  be  charged 
with  the  rents  actually  received,  and  what  could  have  been 
received  by  reasonable  care  and  diligence.^'     But  the  mort- 


em//ar/^^r  v.  £/j,  70  III.  581.  See 
Blum  V.  Mitchell,  59  Ala.  535; 
Powell  V.  Williams,  14  Ala.  476,  48 
Am.  Dec.  105 ;  Equitable  Trust  Co. 
V.  Fisher,  106  111.  189;  Rooney  v. 
Crary,  11  111.  App.  213;  Grossman 
V.  Card,  143  Mass.  152,  9  N.  E.  514, 
Gerrish  v.  Black,  104  Mass.  400; 
Shouler  v._  Bonander,  80  Mich. 
531,  45  N.  W.  487;  Millard  v. 
Truax,  7Z  Mich.  381,  41  N.  W. 
328;  Posten  v.  Miller,  60  Wis. 
494,  19  N.  W.  540.  Compare,  Hall 
V.  Westcott,  17  R.  I.  504,  23  Atl.  25. 
See  ante,  §  1206. 

Equity  has  jurisdiction  of  a  suit 
by  a  mortgagor  against  a  mortgagee 
in  possession  to  redeem,  and  for 
an  account  of  rents  and  profits. 
Posten  V.  Miller,  60  Wis.  494,  19  N. 
W.  540. 

In  a  suit  to  redeem  against  a 
mortgagee  in  possession  brought  by 
the  mortgagor's  grantee  and  as- 
signee of  the  lands,  the  latter  is  en- 
titled to  an  accounting  and  to  have 
any  balance  above  expenses  applied 
on  the  mortgage.  Shouler  v.  Bon- 
ander, 80  Mich.  531,  45  N.  W.  487. 

The  mortgagor  may  show  the 
actual  amount  of  rents  and  profits 
obtained  by  the  mortgagee  while  in 
possession.  Rooney  v.  Crary,  11 
111.  App.  213. 

But  it  is  proper,  on  a  bill  to  re- 
deem for  the  master  to  disallow 
a  mortgagee's  account  made  up 
from  memory  only  after  the  lapse 
of  several  years,  and  to  make  a 
computation  himself  based  upon  the 


evidence.    Hall  v,  Westcott,  17  R.  I. 
504,  23  Atl.  25. 

The  mortgagee  is  chargeable  with 
the  actual  rents  and  profits  received 
by  him  from  the  time  he  entered 
into  possession,  and  is  to  be  credited 
virith  annual  taxes  paid  by  him. 
The  balance  remaining  each  year 
should  be  applied  first  to  the  ex- 
tinguishment of  the  interest  on  the 
mortgage  debt,  and  the  remainder, 
if  any,  to  the  principal.  Blum  v. 
Mitchell,  59  Ala.  535. 

In  Gerrish  v.  Black,  104  Mass. 
400,  on  a  bill  in  equity  to  redeem 
lands  from  a  mortgage,  it  appeared 
that  the  defendant,  who  had  entered 
to  foreclose,  lived  in  another  state, 
and  appointed  an  agent  to  manage 
the  property;  and  there  was  no  evi- 
dence of  negligence  in  the  appoint- 
ment of  the"  agent,  or  of  fraud  on 
the  part  of  the  mortgagee.  The 
court  held  that  without  other  evi- 
dence of  negligence  than  the  testi- 
mony of  the  mortgagor's  witnesses, 
as  experts,  that  a  higher  rent  could 
have  been  obtained,  the  mortgagee 
should  not  be  charged  with  a 
greater  amount  than  he  received  as 
rent. 

A  mortgagee  refusing  to  allow 
redemption  and  ejecting  the  mort- 
gagor from  possession,  must  ac- 
count not  only  for  the  rents,  but 
for  the  damages  and  costs  re- 
covered in  the  ejectment  suit,  and 
for  what  the  mortgagor  would  have 
realized  from  the  crop  growing  on 
the    premises    at    the    time    of    the 


§  1214] 


REDEMPTION. 


1617 


gagee  should  be  charged  with  the  rent  of  the  land  only  from  the 
time  he  was  let  into  the  occupancy  of  the  premises,  and  inter- 
est must  not  be  charged  upon  the  rents  from  the  end  of  the 
year  when  they  accrued,  but  the  rents  should  be  first  applied 
at  the  end  of  the  year  to  extinguish  the  interest  for  that  year ; 
and  if  a  balance  of  rent  remains  it  should  be  applied  pro  tanto 
to  the  payment  of  the  principal. ^^  Where  an  action  is  brought 
to  redeem  property  that  is  open,  unenclosed,  and  without  build- 
ings, and  the  mortgagee's  possession  was  merely  constructive, 
he  should  not  be  charged  anything  for  its  use  and  occupation.^^ 
And  where  there  have  been  needed  improvements  which  facili- 
tate the  enjoyment  of  the  estate  or  enhance  the  value  they  may 
be  set  off  against  rents  and  profits ;  "'^  and  the  mortgagee  should 
be  allowed  for  taxes  paid  by  him,  if  he  is  required  to  pay  rent 
for  his  occupancy.'^ 

But  an  account  of  rents  and  profits  is  not  an  inseparable 
incident  to  a  decree  for  redemption  against  a  mortgagee  in 


ouster,  less  the  probable  cost  of 
cultivation,  etc.  Powell  v.  Wil- 
liams, 14  Ala.  476,  48  Am.  Dec.  105. 

hi  New  Jersey  an  assignee  of  a 
mortgage  given  as  further  security 
for  a  debt  vv^hich  had  been  previously 
secured  by  a  lease  by  the  mortgagee 
of  the  premises  as  collateral  cannot 
be  charged  by  the  mortgagor,  on  a 
bill  to  redeem,  with  the  rents  col- 
lected by  the  mortgagee  before  the 
assignment,  but  never  paid  over  to 
the  assignee,  who  was  merely  to  ap- 
ply them  on  the  debt  at  the  end  of 
the  term  of  the  lease.  Hallv.West- 
cott,  17  R.  I.  504,  23  Atl.  25. 

Interest  on. — In  a  suit  in  equity 
to  redeem  certain  parcels  of  land 
from  several  mortgages  given  to  the 
defendant's  testator,  on  an  account- 
ing by  the  master  under  an  order 
of  the  court,  defendant  ought  to  be 
charged  with  interest  on  items  of 
credit  to  which  plaintiff  was  found 
Mortg.  Vol.  II.— 102. 


entitled  by  the  master  who  stated 
the  account  between  the  parties. 
Grossman  v.  Card.  143  Mass.  152, 
9  N.  E.  514. 

68  Powell  V.  Williams.  14  Ala.  476, 
48  Am.  Dec.  105. 

^^Peugh  V.  Davis,  113  U.  S.  542, 
28  L.  ed.  1127. 

'3'°  But  he  will  not  be  allowed  to 
receive  pay  for  his  alleged  improve- 
ments in  cutting  away  timber. 
Equitable  Trust  Co.  v.  Fisher,  106 
111.  189.  See  Parmer  v.  Parmer,  7^ 
Ala.  285 ;  Equitable  Trust  Co.  v. 
Fisher,  106  111.  189;  Millard  v. 
Truax,  73  Mich.  381,  41  N.  W.  328. 

Any  excess  over  the  improve- 
ments cannot  be  recovered  of  the 
mortgagee  while  in  possession 
under  foreclosure  sale.  Parmer  v. 
Parmer.  74  Ala.  285. 

'J^  Millard  v.  Truax,  73  Mich.  381, 
41  N.  W.  328. 


1618  MORTGAGE    FORECLOSURES.  [§    1215 

possession,'^  and  when  allowed,  a  sum  equal  to  the  interest 
on  the  money  borrowed  should  not  in  such  case  be  ahowed  as 
rent,  where  the  possession  was  worth  nothing.'^  In  those 
cases  where  there  has  been  long  delay,  and  acquiescence  in  the 
claim  of  the  mortgagee  to  ownership,  it  is  said  that  the  account 
of  interest  due  on  the  loan,  and  of  the  rent  and  profits  of  the 
land  commence  at  the  date  of  the  filing  of  the  bill.'* 

§  1215.  Same — Dismissal  of — Effect. — A  bill  to  redeem,, 
like  any  other  bill  in  equity,  will  be  dismissed  for  want  of 
jurisdiction,'*  and  in  some  cases  where  brought  without  leave 
and  without  authority  and  unsworn  to,  as  required  by  the 
rules  of  practice,'^  will  be  dismissed.  Thus  it  has  been  said 
that  where  a  bill  in  equity  brought  to  redeem  mortgaged  prem- 
ises on  the  day  before  a  foreclosure  would  have  become  abso- 
lute, is  made  returnable  in  the  wrong  county,  and  dismissed 
for  want  of  jurisdiction,  and  no  tender  has  been  made  of  the 
amount  due,  and  there  has  been  no  contract  to  extend  the  time 
of  redemption,  a  bill  to  redeem,  brought  nearly  a  year  after 
the  dismissal  of  the  former  bill,  should  be  dismissed."  The 
effect  of  a  simple  dismissal  of  a  bill  to  redeem,'^  or  failure  to 
perform  the  decree,'^  is  an  immediate  and  absolute  foreclo- 

72  Russell  V.  Southard,   53  U.  S.  ''  Webb  v.  Nightingale,  96  Mass. 

(12  How.)  139,  13  L.  ed.  927.  (14  Allen)   374. 

In   order  to   recover   in   separate  See  Bancroft  v.  Sawin,  143  Mass. 

action,  from  a  purchaser  in  posses-  144. 

sion,  for  rents  and  profits,  the  mort-  Delay  is  ground  for  dismissal  of 

gagor  must  show  that  he  was  pre-  bill.     Thus   where   a   plaintiff  filed 

vented  by  accident,  fraud,  or  mis-  a  bill  in  equity  to  redeem  from  a 

take   from   considering  them  when  mortgage,  and  did  nothing  further 

he  made  his  offer  to  redeem.     Bar-  for  two  years,  the  court  held  that,. 

ret  V.  Blackmar,  A7  Iowa,  565.  in   its    discretion,   it   might   dismiss 

''^  Peugh  V.  Davis,  113  U.  S.  542,  the   bill,    and   that   the    fact   of    its 

28  L.  ed.  1127.  being  a  bill  to  redeem  did  not  affect 

"^^  Russell  V.  Southard,  53  U.    S.  the   case.     Bancroft  v.   Sawin,   143 

(12  How.)   139,  13  L.  ed.  927.  Mass.  144. 

75  See  post,  §§  1213,  1218.  '8  Goodcnow  v.   Curtis,  33  Mich. 

7^  See     Sanford    v.     Haines,    71  505. 

Mich.  116,  38  N.  W.  777.  '9  It  is  error  to  direct  a  dismissal 


§    1216]  REDEMPTION.  1619 

sure,®"  and  the  adjudication  by  a  referee,  that  the  mortgage 
shall  be  forever  foreclosed,  upon  the  neglect  of  the  mortgagor 
to  redeem  at  the  time  specified  in  his  award,  is  unobjectionable, 
as  it  only  declares  what  would  be  the  legal  effect  of  his  award, 
if  it  were  silent  upon  the  question  of  foreclosure.^^  The  usual 
form  of  a  decree  letting  in  a  party  to  redeem  is  that  in  case 
of  default  made  in  the  payment  of  the  sum  decreed  to  be  paid 
within  the  time  allowed,  that  the  bill  be  dismissed.*^ 

§  1216.  Same — Evidence  on. — In  those  jurisdictions 
where  the  mortgagor  and  mortgagee  may  legally  agree  that 
the  mortgage  shall  stand  as  security  for  a  debt  other  than 
that  described  in  the  mortgage,  on  a  bill  to  redeem,  the  mort- 
gagee may  show  by  oral  testimony  what  was  the  real  debt  or 
obligation  which  the  mortgage  was  given  to  secure,  or  that 
after  it  was  given,  the  parties  agreed  that  it  should  be  held  as 
security  for  a  new  and  different  debt.®^ 

In  those  cases  where  there  has  been  a  conditional  sale  and 
a  conveyance  absolute  on  its  face,  and  plaintiff  seeks  to  redeem 
therefrom,  the  burden  of  proof  is  upon  him  to  show  that  his 

of  a  bill  to  redeem  if  the  plaintiff  10  Abb.   (N.  Y.)   Pr.  N.  S.  414,  41 

fail  to  pay  within  three  months.    In  How.    (N.  Y.)    Pr.  359;  Sherwood 

default  of  payment,  a  sale  with  the  v.   Hooker,    1    Barb.    Ch.    (N.    Y.) 

usual  statutory  right  of  redemption  650;  Quinn  v.  Brittain,  1  Hoffm.  Ch. 

should    have    been    ordered.      Hoi-  (N.    Y.)    353;   Ferine    v.    Dunn,   4 

lingsworth  v.  Koon,  117  111.  511,  6  John.   Ch.    (N.  Y.)    140;   Waller  v. 

N.  E.  148,  8  Id.  193.  Harris,  7  Paige  Ch.    (N.  Y.)    167^ 

^'^  Hollingsworth  v.  Koon,  117  111.  Jenkins  v.  Elridgc,  1  Woodb.  &  M. 

511,  6  N.  E.  148,  8  Id.  193;  Beach  v.  C.  C.  61;   Wood  v.  Surr,  19  Beav. 

Cooke,  28  N.  Y.  535,  86  Am.  Dec.  551;    Hansard    v.    Hardy,    18    Ves. 

260.      See   Kolle   v.    Clausheidt,   99  460;    Winchester  v.  Paine,   11   Ves. 

Ind.   100;  Shannon  v.  Speers,  2  A.  199,  8  Rev.  Rep.   131. 

K.    Marsh.    (Ky.)    311;    Pitman   v.  ^^  Pitman    v.    Thornton,    66    Me. 

Thornton,  66   Me.  469;  Stez'cns  v.  469. 

Miner,    110   Mass.   57.   59;    Gerrish  ^^  Cowing  v.  Rogers,  34  Cal.  655; 

V.   Black,   109  Mass.  474;   Borrom-  Shannon  v.  Speers.  2  A.  K.  Marsh. 

scale  V.  Tuttle,  22  Mass.   (5  Pick.)  (Ky.)  698;  Perine  v.  Dunn,  4  John. 

577;  Goodenow  v.  Curtis,  33  Mich.  Ch.   (N.  Y.)    140. 

505;  Brown  v.  Simmons,  45  N.  H.  ^^  Taft    v.    Stoddard,    141    Mass. 

211;  Bolles  v.  Duff,  43  N.  Y.  474,  150,  6  N.  E.  836. 


1620  MORTGAGE    FORECLOSURES.  [§    1217 

offer  to  redeem  was  made  within  the  time  provided  by  the 
conditions  under  which  the  conveyance  was  made.^*  Where 
the  bill  was  not  brought  for  six  years  after  the  foreclosure, 
evidence  cannot  be  received  impeaching  the  authority  of  an 
attorney  to  enter,  in  the  foreclosure  suit,  the  appearance  of  a 
purchaser  under  an  execution  sale  made  subject  to  the  mort- 
gage more  than  a  year  before  the  foreclosure  suit,  such  pur- 
chaser being  aware  of  the  foreclosure,  and  selling  his  certifi- 
cate of  purchase  to  the  complainant  without  taking  any  steps 
to  redeem,  and  the  premises  meanwhile  being  occupied  by 
several  successive  grantees  under  the  foreclosure  title. ^^ 

In  a  case  where  a  first  mortgagee,  after  obtaining  a  decree 
of  foreclosure,  but  without  a  sale  thereunder,  went  into  pos- 
session of  the  mortgaged  premises  under  a  quit  claim  deed 
from  the  mortgagee's  vendee.  A  second  mortgagee,  who 
had  foreclosed  and  obtained  the  usual  deed,  filed  a  bill  to  re- 
deem. The  court  held  that  the  facts  established  a  prima  facie 
case  for  the  complainants,  and  threw  upon  the  defendant  the 
burden  of  proving  a  paramount  title.^^ 

It  is  thought  that  where  suit  is  brought  against  both  the 
mortgagor  and  the  mortgagee  by  one  claiming  to  be  the  as- 
signee of  the  mortgagor,  for  the  purpose  of  setting  up  the 
assignment  and  redeeming,  it  is  necessary  to  prove  that  the 
assignment  was  for  a  valuable  consideration.  But  if  the  suit 
is  against  the  mortgagor  alone  it  is  sufilicient  to  prove  the  as- 
signment without  proving  any  consideration.*' 

§  1217.  Same — Irregularities  waived  by. — Filing  a  bill 
to  redeem  from  a  foreclosure  sale  is  a  waiver  of  any  objec- 
tions the  redemptioner  might  otherwise  make  to  the  regularity 
and  sufficiency  of  the  sale.  Thus  it  has  been  said  that  a  bill 
by  a  mortgagor  to  redeem,  treating  the  sale  as  valid,   is  a 

^^  Bridges  v.  Under,  60  Iowa,  190,  86  Farmers,'  &c.  Bank  v.  Branson, 

14  N.  W.  217.  14  Mich.  361. 

^^  Kenyan  v.  Shreck,  52  111.  382.  ^''Medley  v.    Mask,   4  Ired.    (N. 

C.)    Eq.  339. 


§    1218]  REDEMPTION.  1621 

waiver  of  irregularities  in  that  the  land  was  sold  at  a  different 
place  from  that  named  in  the  deed,  and  without  the  appraise- 
ment required  by  law.^'  In  those  cases  where  a  decree  of  fore- 
closure is  interposed,  by  the  party  obtaining  it,  as  an  objection 
to  a  redemption,  which,  but  for  the  effect  of  the  decree,  would 
be  just  and  reasonable,  its  irregularity,  as  well  as  any  other  cir- 
cumstance for  which  it  ought  to  be  set  aside  or  modified,  will 
be  considered  on  the  question  whether  the  time  for  redemption 
shall  be  further  extended.  And  the  validity  of  the  decree,  in 
such  case,  is  gone  into,  not  as  a  technical  question  of  evidence 
but  as  being  of  itself  a  ground  of  relief  to  the  party  seeking 
to  redeem.'^ 

§  1218.  Same — Jurisdiction. — Jurisdiction  to  redeem 
from  a  mortgage  either  before  or  after  sale,  is  a  matter  of 
local  statute  or  rules  of  practice.  But  the  general  rule  is  that 
a  bill  to  redeem  lands  from  a  sale  under  a  mortgage  should 
be  filed  in  the  county  where  jurisdiction  in  personam  can  be  ob- 
tained over  the  mortgagee,  without  reference  to  the  situs  of 
the  land.^° 

It  has  been  said  that  the  New  Jersey  statute  authorizing- 
courts  of  law  to  enforce  equities  of  redemption,  in  certain 
cases,  by  compelling  the  mortgagee  to  reconvey  the  mort- 
gaged premises,  upon  payment  into  court  of  the  money  secured 

^^  Dailey  v.  Abbott,  40  Ark.  275.  been  deprived  by  the  negligence  of 

89  Bridgeport  Sav.   Bank   v.   Eld-  his    counsel.      Thompson    v.    Gold- 

gredge,  28  Conn.  556,  73  Am.  Dec.  ing,  87  Mass.   (5  Allen.)  82;  Mask 

688.      See  Littell  v.   Zimtz,   2   Ala.  v.  Wetmore,  ZZ  Barb.  (N.  Y.)   159; 

256,  36  Am.  Dec.  415;  Seymour  v.  Curtis  v.  Ballagh,  4  Edw.  Ch.    (N. 

Davis,    35    Conn.    271;    Millspaugh  Y.  639;   Tripp  v.   Vincent,  8  Paige 

V.  McBride,  7  Paige  Ch.    (N.  Y.)  Ch.  (N.  Y.)  180;  Millspaugh  v.  Mc- 

509,  34  Am.  Dec.  360.  Bride,  9  Paige  Ch.  (N.  Y.)  509,  34 

A  regularly  enrolled  decree  can-  Am.  Dec.  360. 
not  be  altered,  as  a  general  rule,  ex-  ^^  Kanawha  Coal  Co.  v.  Kanawha, 

cept    by   bill    in    review.      Lillie    v.  &c.  Coal  Co.  7  Blatchf.  C.  C.  391, 

Shaw,  59  111.  76.  415.     See  Smith  v.  Larrabe,  58  Me. 

Decree  by  default  may  be  opened,  361.     See  also  Clark,  as  adm'r.  etc. 

it  is  thought,  to  let  in  a  defense  on  v.    Seagravcs.    as    adm'r,    etc.    186- 

the   merits    of   which   a   party    has  Mass.  430,  71  N.  E.  813. 


1622  MORTGAGE    FORECLOSURES,  [§    1219 

by  the  mortgage,  is  not  applicable  to  any  case  in  which  the 
mortgagor  is  himself  the  actor. ^^ 

The  supreme  court  of  Michigan,  in  the  case  of  Sanford  v. 
Haines,^^  say  that  a  decree  of  foreclosure  for  fifty  dollars  more 
than  the  amount  due,  does  not,  as  a  separate  grievance,  give 
a  court  of  equity  jurisdiction  to  let  in  to  redeem  the  mort- 
gagor or  those  claiming  under  him. 

§  1219.  Same — Multifariousness. — A  bill  to  redeem 
from  a  mortgage  may  be  bad  for  multifariousness.  But  a 
bill  by  a  mortgagor  to  avoid  a  sale  under  the  power  in  the 
mortgage  and  to  redeem,  seeking  relief  in  the  alternative  under 
a  special  agreement  between  himself  and  the  mortgagee,  or  as 
a  legal  right  from  their  relations,  is  not  multifarious.^^  And 
in  a  case  where  a  bill  in  equity  was  filed  to  redeem  a  mortgage 
.and  to  secure  a  balance  of  account  claimed  to  be  due  the  com- 
plainant, it  was  held  by  the  supreme  court  of  Rhode  Island  not 
to  be  multifarious.®*  A  complainant  may  claim  the  same  thing 
under  different  titles  in  the  same  bill,  and  the  statement  of 
those     titles     will     not     render     the     bill     multifarious.®** 

§  1220.  Same — Requisites  of — Tender. —  The  general 
rule  is  that  the  bill  to  redeem  must  offer  to  pay  the  amount 
found  to  be  due ;  ®*  but  such  tender  is  not  indispensable  to  the 

81  Shields  v.  Lozear,  34  N.  J.  L.  man  v.  Collins,  69  Ala.  127 ;  Stocks 

(5  Vr.)   496.  3  Am.  Rep.  256.  v.    Youngs,   67    Ala.   341;   Draugh- 

92  71  Mich.  116,  38  N.  W.  777.  drill    v.     Sweeney,    41     Ala.     310; 

^^  Adams  \.  Sayre,  70  A\?L.  2)\?>.  Crews   v.    Treadgill,   35    Ala.    334; 

94  Greene  v.  Harris.  10  R.  I.  382.  Holt  v.  Rees,  46  111.  181 ;  Nesbit  v. 
^'^'^  Arnold  V.  Arnold,  9  R.  I.  397.  Hanway,    87    Ind.    400;    Kemp    v. 

95  Kennebec  &  P.  R.  Co.  v.  Port-  Mitchell,  36  Ind.  249;  Anson  v.  An- 
land  &  K.  Co.  54  Me.  173;  Loney  son,  20  Iowa,  55,  89  Am.  Dec.  514; 
V.  Courtney,  24  Neb.  580,  39  N.  W.  Mcaler  v.  Howes  (Me.)  10  Atl. 
616;  Kemp  v.  Mitchell,  36  Ind.  249;  460;  Pitman  v.  Thornton,  66  Me. 
McLelland  v.  A.  P.  Cook  Co.  94  469;  Way  v.  Mullett,  149  Mass.  49; 
Mich.  528,  54  N.  W.  298.  Gerrish  v.  Black,  122  Mass.  76;  Mc- 

See  Fouche  v.  Swain,  80  Ala.  151 ;  Clelland  v,  A.  P.  Cook  Co.  94  Mich. 
Adams  v.  Sayre,  70  Ala.  318;  Leh- 


§  1220] 


REDEMPTION. 


1623 


right  to  maintain  the  bill.^^    Such  a  bill  should  distinctly  and 


528,  54  N.  W.  298 ;  Dayton  v.  Day- 
ton, 68  Mich.  437.  30  N.  W.  209; 
Sardeson  v.  Menage,  41  Minn.  314, 
43  N.  W.  66;  Hoopes  v.  Bailey,  28 
Miss.  328;  Edgerton  v.  McRea,  6 
Miss.  (5  How.)  183;  Loney  v 
Courtney,  24  Neb.  580,  39  N.  W 
€16;  Eastman  v.  Thayer,  60  N.  H 
408;  Perry  v.  Carr,  41  N.  H.  371 
Champion  v.  Joslyn,  44  N.  Y.  653 
Silsbee  v.  Smith,  41  How.  Pr.  (N 
Y.)  418;  Beekman  v.  Frost,  18  John 
Ch.  (N.  Y.)  544,  9  Am.  Dec.  246 
Barton  v.  Ma:y,  3  Sandf.  Ch.  (N 
Y^)  450;  Still  v.  5M22e//,  60  Vt.  478 
12  Atl.  209;  Kopper  v.  i:>3)^r,  59  Vt 
477,  59  Am.  Rep.  742,  9  Atl.  4 
^rofe.y/  V.  Brock,  77  U.  S.  (10  Wall.) 
519,  sub  nom.  Doe  ex  d.  Brobst  v. 
Roe,  19  L.  ed.  1002;  Dalter  v. 
Hayter,  7  Beav.  319;  Tasker  v. 
Small,  3  Myl.  &  C.  63 ;  Harding  v. 
Fingey,  10  Jur.  N.  S.  872.  See  ante 
§  1177;  £>o^  V.  Little  field,  as  adni'r, 
etc.  99  Me.  317,  59  Atl.  438;  Shank 
v.  Groff,  45  W.  Va.  543,  32  S.  E. 
248;  Lumsden  v.  Manson,  96  Me. 
357,  52  Atl.  783;  Amo-ican  Loan  and 
Trust  Co.  V.  Atlanta  Electric  Ry. 
Co.  99  Fed.  313;  See  Baker  v. 
Biirdeshaw,  132  Ala.  166,  31  So. 
497;  Sharpe  v.  Lees,  123  Pac.  1071 
(Or.)  See  also  Tucker  v.  Wither- 
bee,  130  Ky.  269,  113  S.  W.  123; 
Eldredge  v.  Hoefer,  52  Or.  241,  93 
Pac.  246 ;  Iowa  Loan  &  Trust  Co.  v. 
Kunsch,  135  N.  W.  426  (Iowa). 

In  Alabama,  tender  is  made  a 
condition  precedent  by  statute. 
(Code  1896,  §  3507).  Lacey  v. 
Lacey,  39  So.  922  (Ala.)  See  also 
Seals  V.  Rogers.  55  So.  417   (Ala.) 

A  bill  in  equity  to  redeem,  is  not 


good  unless  it  contains  a  formal 
offer  to  pay  whatever  sum  may  be 
found  due  upon  taking  the  account. 
Kemp  V.  Mitchell,  36  Ind.  249. 

Same — The  supreme  court  of  Ne- 
braska, in  the  case  of  Loney  v. 
Courtney,  24  Neb.  580,  39  N.  W. 
616,  say  that  in  an  action  in  equity 
to  redeem  from  an  alleged  voidable 
mortgage  foreclosure,  the  mort- 
gagor must  offer  to  pay  what  is 
equitably  due  under  the  decree,  with 
interest  and  taxes. 

A  bill  to  set  aside  a  mortgage 
foreclosure  and  for  a  discharge  of 
the  mortgage  lien  on  a  claim  that 
a  tender  was  made  of  the  amount 
due,  is  not  maintainable  where  there 
is  no  evidence  that  an  unconditional 
tender  of  the  amount  due  was 
made,  and  all  the  surrounding  cir- 
cumstances, as  well  as  defendant's 
testimony,  contradict  the  claim. 
McClelland  v.  A.  P.  Cook  Co.  94 
Mich.  528,  54  N.  W.  298. 

^^  Beach  v.  Cooke,  28  N.  Y.  508. 
86  Am.  Dec.  260.  See  Dennis  v. 
Tomlinson,  49  Ark.  568;  Decker  v. 
Fatten,  120  111.  464,  11  N.  E.  897, 
aff'g  20  111.  App.  210;  Catterlin  v. 
Armstrong,  79  Ind.  548,  41  Am.  Rep. 
627;  Millett  v.  Blake,  81  Me.  531, 
10  Am.  St.  275 ;  Brown  v.  So.  Bos- 
ton Sav.  Bank,  148  Mass.  300;  Kline 
V.  Vogel,  90  Me.  239,  2  S.  W.  408: 
Watkins  v.  IVatkins,  57  N.  H.  462; 
Hall  V.  Hall.  46  N.  H.  240;  Folk  v. 
Mitchell,  85  Tenn.  634;  Doty  v. 
Norton,  133  App.  Div.  106,  117  N. 
Y.  Supp.  793;  Longino  v.  Ball- 
Warren  Commission  Co.  84  Ark. 
521,  106  S.  W.  682.  See  also  Toole. 
as  rec'r,  etc.  v.  Weirick.  39  Mont. 
359,  133  Am.  St.  Rep.  576,  102  Pac. 


1624 


MORTGAGE    FORECLOSURES. 


[§    1220 


unequivocally  set  out  the  facts.^'  Thus  in  a  bill  to  redeem 
and  for  a  general  accounting,  a  general  averment  that  the  bal- 
ance due,  if  any,  was  inconsiderable,  and  that  the  purchasers 
at  a  sale  under  the  mortgage  bought  with  knowledge  of  the 
true  state  of  the  account,  is  too  indefinite ;  ^*  yet  a  bill  to  re- 
deem may  properly  be  framed  with  a  double  aspect,  so  that 
the  complainant  may  avail  himself  of  a  tender  if  his  proof 


590;  Nichols  v.  Marquess,  141  Ky. 
642,  133  S.  W.  562. 

In  Arkansas,  where  plaintiff  has 
paid  the  mortgage,  or  the  mortgagee 
has  paid  himself  out  of  rents  and 
profits,  it  is  sufficient  to  offer  pay- 
ment and  demand  an  accounting. 
Dennis  v.  Tomlinson,  49  Ark.  568. 

In  Illinois  an  offer  to  redeem  is 
neither  necessary  nor  material,  in  a 
bill  for  redemption.  Decker  v.  Pat- 
ton,  20  111.  App.  210,  aff'd  in  120 
111.  464,  11  N.  E.  897;  Taylor  v. 
Dillenberg,  168  111.  235,  48  N.  E. 
41. 

In  Indiana  the  rule  is  same  as  in 
Arkansas.  Catterlin  v.  Armstrong, 
79  Ind.  514.  See  ^tna  Life  Insur- 
ance Co.  V.  Stryker,  38  Ind.  App. 
312,  78  N.  E.  245. 

In  Missouri,  in  an  equitable  action 
to  redeem,  on  payment  of  the  bal- 
ance found  to  be  due,  it  is  unneces- 
sary that  a  tender  of  the  money 
should  be  made  in  the  petition,  or 
that  the  money  be  paid  into  court. 
Kline  V.  Vogel.  90  Mo.  239,  2  S.  W. 
408.  See  Gopling  v.  Walton,  138 
Mo.  485,  40  S.  W.  99. 

In  New  Hampshire,  even  with- 
out a  tender  or  demand  of  ac- 
count, a  bill  to  redeem  a  mortgage 
can  be  maintained,  as  the  special 
provisions  of  the  statute  allowing 
remedy  by   petition   do   not   super- 


sede the  general  remedy  in  equity. 
Hall  V.  Hall,  46  N.  H.  240. 

Thus  it  is  said  that  a  bill  to  re- 
deem a  mortgage,  which  goes  upon- 
the  ground  that  the  defendant 
fraudulently  prevented  the  plaintiff 
from  reasonably  redeeming,  and 
neglected  to  render,  when  requested,, 
a  statement  of  the  sum  due,  should 
not  be  dismissed  because  there  has 
not  been  a  tender  of  the  amount 
due,  which  payment  can  be  pro- 
vided for  by  the  decree.  Watkins 
v.  Watkins,  57  N.  H.  462. 

In  Tennessee  a  redemption  bill 
is  not  defective  because  the  redemp- 
tion money  is  not  brought  into 
court;  certainly  not,  where  there 
has  been  a  tender,  where  plaintiff 
offers  to  pay,  where  the  bill  has  not 
been  demurred  to,  and  where  de- 
fendant absolutely  denies  plaintiff's 
right  to  redeem.  Polk  v.  Mitchell^ 
85  Tenn.  634. 

9' A  bill  in  equity  against  a  rail- 
road corporation  in  possesison  to 
redeem  the  railroad  from  a  mort- 
gage, must  allege  that  the  defend- 
ant corporation  has  some  title  in 
the  mortgage,  or  must  aver  infor- 
mation and  belief  of  the  same.  It 
must  also  allege  a  formal  offer  to 
pay  what  may  be  found  due.  Ken- 
nebec, &c.  R.  R.  Co.  v.  Poriland, 
&c.  R.  R.  Co.  54  Maine,  173. 

98  Conner  v.  Smith,  74  Ala.  115. 


§    1222]  REDEMPTION.  1625 

thereof  shall  be  sufficient,  or,  faihng  in  that,  pray  an  account 
and  to  be  permitted  to  pay  the  amount  found  due.  Regularly, 
however,  the  prayer  should  be  in  the  alternative.^^  In  some 
states  a  bill  to  redeem  must  show  affirmatively  that  the  party 
claiming  the  equity  of  redemption  was  not  made  a  defendant 
in  the  action  for  foreclosure,^  and  in  others  the  bill  to  redeem 
must  distinctly  allege  the  debtor's  delivery  of  possession  to 
the  purchaser  within  a  stipulated  time.^  Upon  a  bill  to  redeem, 
where  there  are  no  peculiar  facts  and  circumstances  taking 
the  case  out  of  the  ordinary  rule,  the  complainant  cannot  claim 
as  a  right  to  have  a  decree  entered  for  the  sale  of  the  mort- 
gaged premises,  as  in  case  of  foreclosure  subject  to  the  statu- 
tory right  of  redemption.^ 

§  1221.  Same — Same — In    action    by    grantee. — It    is 

thought  that  on  a  bill  brought  by  the  grantee  of  the  mort- 
gagor, the  offer  to  redeem  is  sufficient  in  praying  that  the 
plaintiff  be  allowed  to  pay  such  sum  as  shall  be  found  due  on 
the  mortgage ;  *  it  is  not  necessary  that  he  should  offer  to  pay 
in  such  distinct  terms  as  to  constitute,  if  accepted,  an  en- 
forcible  contract.^  An  amendment  to  a  bill  by  such  grantor 
or  purchaser  of  the  equity  of  redemption,  admitting  the  equity 
to  be  in  the  mortgagor,  and  seeking  redemption  as  a  mere 
judgment  creditor,  is  inadmissible,  because  radically  changing 
the  right  of  action.^ 

§  1222.  Same — Same — In  action  by  junior  lienor. — A 
bill  to  redeem,  filed  by  a  junior  against  a  senior  mortgagee, 
is  a  recognition  of  the  validity  of  the  older  mortgage,  and, 

99  Gooding  v.  Riley,  SO  N.  H.  400.  ^  Brown    v.    South    Boston    Sav. 

^Dervin  v.  Jennings,  4  Neb.  97.  Bank.  148  Mass.  300. 

2  Stocks  V.  Young,  67  Ala.  341.  Mass.  Pub.  Stats,  c.  i8i,  §§  27,  33, 

^Decker  v.  Patton,  20  III.   App.  are  construed   by  the  court  in  the 

210,  aff'd  120  111.  464,  11  N.  E.  897.  above  case,  in  arriving  at  the  con- 

*  See  Murphree  v.  Summerlin,  114  elusion  set  out  in  the  text. 

Ala.  54,  21  So.  470  ^Rapier  v.  Gulf  City  Paper  Co, 

69  Ala.  476. 


1626  MORTGAGE    FORECLOSURES.  [§    1223 

in  some  jurisdictions,  the  redemptioner  must  offer  to  pay  the 
amount  due  on  it.'  In  a  case  where  one  who  files  a  bill  to  re- 
deem from  a  mortgage  avers  that  he  owns  a  certain  mortgage 
which  is  subsequent  to  his  own,  and  his  bill  is  not  demurred  to, 
it  may  be  sustained  notwithstanding  he  fails  to  set  forth  such 
facts  as  show  that  his  mortgage  and  that  from  which  he  seeks 
to  redeem  are  mortgages  in  the  same  chain  of  title.  Especially 
is  this  true  when  it  appears  that  the  defendant  has  recognized 
his  right  to  make  payments  by  receiving  interest  from  him.' 
But  where,  in  an  action  by  a  junior  mortgagee  to  redeem  mort- 
gaged premises  from  a  sale  thereof,  under  a  decree  of  foreclo- 
sure of  the  equity  of  redemption  on  a  prior  mortgage,  it  ap- 
peared that  the  plaintiff  was  not  a  party  to  the  decree,  and 
that  he  held  an  unrecorded  mortgage  at  the  commencement  of 
the  foreclosure  suit,  and  the  complaint  did  not  aver  that 
either  the  holder  of  the  senior  mortgage  or  the  purchaser 
had  notice  of  the  unrecorded  mortgage,  the  court  held  the 
complaint  bad  on  demurrer.^ 

§  1223.  Same — Statutory  provisions. — In  most  of  the 
states,  if  not  all  of  them,  there  are  statutory  provisions  regu- 
lating actions  to  redeem.  These  statutes  must  be  strictly  com- 
plied with.^°  Thus,  under  a  statute  "  requiring  a  party  re- 
deeming to  file  within  twenty-four  hours  the  documents  pro- 
duced to  the  person  or  officer  from  whom  the  redemption  is 
made,  being  intended  for  the  benefit  of  subsequent  redemption- 
ers,  they  alone,  if  anyone,  can  take  advantage  of  an  omission 
to  comply  with  its  provisions. ^^    Under  the  Missouri  statute, ^^ 

"^  Fouche  V.  Swain,  80  Ala.   151;  99  Me.  317,  59  Atl.  438.     See  Iowa 

Higman  v.  Humes,  133  Ala.  617,  '6t.  Loan   &   Trust  Co.  v.  Kunsch,  135 

So.  574.  N.   W.   426    (Iowa). 

^  Lamb  v.  Jeffrey,  47  Mich.  28,  10  "Minn.  L.   1881,  Ex.  Sess.  c.  3. 

N.  W.  65.  12  Wilson    v.     Hayes,    40     Minn. 

^Harlock   v.    Barnhizer,   30    Ind.  531,  4  L.R.A.  196,  12  Am.  St.  754, 

370.  40  Alb.  L.  J.  8,  42  N.  W.  467. 

10  Doe  V.  Littlefield,  as  adm'r,  etc.  13  Mo.  Rev.  Stat.  §§  3298,  3299 


§    1224]  REDEMPTION.  1627 

the  right  to  redeem  from  a  sale  under  a  trust  deed  exists  only 
when  the  cestui  que  trust,  his  assignee,  or  some  one  for  one 
of  them,  becomes  purchaser;  and  no  party  can  redeem  until 
he  shall  have  given  security  at  the  date  of  sale.^* 

§  1224.  Same — Time  within  which  to   be  brought. — 

The  time  within  which  a  bill  is  to  be  brought  is  regulated  by 
the  local  statutes  or  rules  of  the  particular  court  in  which 
the  action  is  brought.  Laches,  and  the  running  of  the  statute 
of  limitation,"  among  other  things,  bars  the  bringing  of  a 
bill  to  redeem.  All  possible  indulgence  is  to  be  accorded  to 
persons  seeking  to  redeem,  who  have  acted  in  good  faith 
throughout.  Thus,  it  has  been  said  that  a  court  of  chancery, 
when  it  ascertains  that  the  object  of  a  deed  absolute  in  form 
is  to  give  security  for  a  debt,  will  relieve  the  mortgagor  from 
the  consequences  of  his  failure  to  redeem  in  time,^^  although 
the  parties  intended  time  to  be  of  the  essence  of  the  contract.^' 
And,  on  the  other  hand,  in  a  case  where  the  creditor  assented 
to  the  extension  of  the  time  of  payment  of  a  debt  secured  by 
mortgage,  but  no  definite  time  was  fixed,  and  suit  was  not 
brought  to  foreclose  the  mortgage  for  nearly  three  and  a  half 
years,  and  the  debtor,  long  before  suit,  intimated  that,  on  a 
designated  contingency  which  had  occurred,  he  would  not  re- 

^^  Dawson   v.  Egger,  97   Mo.   Z6,  acquiesce  in  the  action  of  defend- 

11  S.  W.  61;  Updike  v.  Merchants'  ant    in    making    the    improvements. 

Elevator  Co.  96  Mo.   160,  8  S.  W.  the  court  held  that  the  bill  should 

779.     See   Walmsley  v.  Dougherty,  be    dismissed    for    laches,    although 

163    Mo.   298,   63    S.   W.   693.     See  the    statute    of    limitations    at    law 

also  Sturgeon  v.  Mudd,  190  Mo.  200,  had   not   run   between   the  time  of 

88  S.  W.  630.  the  sale  and  the  time  of  the   suit 

15  In  a  case  where  the  action  was  brought.     Kline   v.    Vogel,  90    Mo. 

not  brought  by  the  purchaser  of  the  239,  2   S.   W.  408.     See  also  post, 

equity    of    redemption    until    three  §§   1247-1249. 

years  after  the  sale,  and  after  ex-  16  See  Gerson  v.  Davis.  143  Ala. 

penditures  by  the  purchaser  for  re-  381,  39  So.  198;  A([att  v.  Fiske,  155 

pairs,  insurance,  etc.,  and  after  com-  Ind.  597,  58  N.  E.  1053. 

plainant  had   frequently  refused  to  ^''Jackson  v.   Lynch,    129   111.   85, 

pay    the     debt,     and    appeared    to  22  N.  E.  246. 


1628  MORTGAGE    FORECLOSURES.  [§    1225 

sume  payments,  and  the  facts  showed  he  made  no  effort  to  pay 
when  he  could  have  done  so ;  on  a  bill  by  the  debtor  to  redeem 
from  a  sale  under  the  mortgage,  the  court  held  that  the  creditor 
was  under  no  duty  to  notify  him  before  instituting  proceed- 
ings to  foreclose,  and  that  such  assent  to  extend  the  time  of 
payment  afforded  no  equitable  ground  for  relief." 

Where  no  time  of  repayment  is  set  forth  in  a  mortgage  to 
secure  future  advances,  the  mortgagee  is  not  bound  to  wait 
indefinitely,  but  can  file  a  bill  calling  upon  the  mortgagor  to 
redeem  within  such  time  as  equity  shall  decree,  or  to  permit  a 
sale  and  Hquidation." 

§  1225.  Same — When  to  be  brought. — In  all  cases 
where  there  is  a  statute  regulating  the  time  within  which  an 
action  shall  be  brought  to  redeem  from  a  mortgage,  or  a  mort- 
gage foreclosure,  that  statute  must  be  strictly  complied  with.^° 
Thus,  the  supreme  court  of  Minnesota,  in  the  case  of  Gates 
V.  Ege,^^  say  that  an  action  to  redeem  real  estate  from  a  sale 
made  upon  foreclosure  of  a  mortgage  which  is  a  first  lien  upon 
the  premises,  and  also  from  a  decree  afterwards  made  in  pro- 
ceedings to  enforce  a  mechanic's  lien,  brought  by  one  as  owner, 
will  be  dismissed  where  it  clearly  appears  that  the  plaintiff 
has  permitted  the  time  within  which  he  should,  under  the 
statute,'^''  have  brought  his  action  to  expire  without  taking  steps 
to  enforce  his  rights.  The  supreme  judicial  court  of  Massa- 
chusetts, in  the  case  of  Flanders  v.  Hall,^'  hold  substantially 
the  same  doctrine.  In  Pancake  v.  Cauffman,^*  where  an  action 
was  brought  by  the  grantor  to  enforce  an  alleged  equity  of  re- 
demption, claiming  that  the  deed  was  subject  to  a  parol  de- 
is  Seymour  v.  Bailey,  66  111.  288.  21  57  Minn.  465,  59  N.  W.  495. 
^9  Baker  v.  Bailey,  204  Pa.  524,  22  Minn.  Gen.  Stat.  1878,  c.  81, 
54  Atl.  326.                                               §§  13,  14. 

20  See  Flanders  v.  Hall.  159  Mass.  23  159  Mass.  95,  34  N.  E.  178. 

95,  34  N.  E.  178;  Gates  v.  Ege,  57  24114  Pa.  St.  113,  6  Atl.  67. 

Minn.  465,  59  N.  W.  495 ;  Pancake 
V.  Cauffman,  114  Pa.  St.  113.  6  Atl. 
67. 


§    1227]  REDEMPTION,  1629 

feasance,  was  not  brought  until  more  than  twenty  years  after 
the  execution  of  the  deed,  the  land  meanwhile  having  passed 
into  the  hands  of  a  purchaser  for  value  without  notice  of  such 
equity,  the  court  held  that  that  fact,  together  with  the  facts  that 
plaintiff  knew  of  the  defendant's  purchase,  and  then  made  no 
claim  of  title,  and  surrendered  the  land  to  the  defendant,  and 
paid  rent  to  defendant's  grantor,  and  acquiesced  in  defend- 
ant's title  until  the  value  of  the  property  largely  increased, 
showed  laches  which  would  prevent  a  recovery. 

§  1226.  Defenses — Conveyance     to     mortgagee. — We 

have  already  seen,^^  that  the  mortgagor  may  sell  the  equity 
of  redemption  in  the  mortgaged  property  to  the  holder  of 
the  mortgage,  and  that  such  an  arrangement  will  be  upheld 
by  the  courts  where  fairly  conducted  and  based  on  a  valuable 
consideration.  In  conformity  with  this  principle,  it  has  been 
said  that  a  conveyance  of  mortgaged  premises  by  the  mort- 
gagor to  the  mortgagee  in  satisfaction  of  the  debt,  is  color 
of  title;  and  if  the  grantee  pays  taxes  on  the  land,  while  it 
is  vacant,  for  more  than  seven  years  thereafter,  this  will 
constitute  a  good  defense  to  a  suit  to  redeem  the  premises  by 
a  person  claiming  by  virtue  of  an  execution  sale  and  deed  of 
the  premises  under  a  judgment  rendered  against  the  mort- 
gagor before  his  conveyance  to  the  mortgagee.^^ 

§  1227.  Same — Conveying  wrong  lot. — A  mutual  mis- 
take is  always  relieved  against  in  equity;  hence,  it  has  been 
said  that  a  deed  conveying  another  lot  of  land  than  that 
intended,  is  not  wholly  void,  and  such  mistake  is  not  a  defense 
in  favor  of  a  third  party  in  possession,  as  against  the  grantee's 

25  See  ante,  §  1047.  man,  29  Mo.  593,  77  Am.  Dec.  586; 

2«  McCagg  v.  Heacock,  34  111.  476,  Bailey  v.   Carlton,   12  N.   H.  9,  Z7 

85    Am.    Dec.    327.      See    Royal   v.  Am.  Dec.  190;  Green  v.  Kellum,  23 

Lessee  of  Lisle.  15  Ga.  545,  60  Am.  Pa.  St.  254,  62  Am.  Dec.  332;  Ed- 

Dec.    712;    Hassett    v.    Ridgley,   49  garfon  v.  Byrd,  6  Wis.  527,  70  Am. 

111.  202;  City  of  St.  Louis  v.  Gor-  Dec.  473. 


1630  MORTGAGE    FORECLOSURES.  [§    1228 

mortgagee  seeking  to  redeem  from  a  prior  mortgage.^''^  In 
such  a  case,  the  mortgage  is  effectual  to  pass  title  as  between 
the  parties  thereto.^^  In  Edwards  v.  Roys,^^  the  court  say : 
"The  conveyance  is  only  void  as  to  the  person  holding  adverse- 
ly, and  those  who  subsequently  come  in  under  him.  As  to  all 
others,  the  conveyance  is  valid,  and  passes  the  title  or  interest 
from  the  grantor  to  the  grantee."  In  the  subsequent  case  of 
Hall  V.  Westcott,^°  this  court  quoted  this  language,  and  add : 
"We  think  this  doctrine  is  certainly  true  in  equity." 

§  1228.  Same — Improvements  with  knowledge. — The 
supreme  court  of  Missouri,  in  the  case  of  Nelson  v.  Sarre,^* 
say  that  in  a  suit  to  redeem  from  a  purchaser  at  a  mortgage 
sale,  it  is  no  defense  that  he  has  made  improvements  with 
the  knowledge  of  the  mortgagor  if  the  improvements  do  not 
exceed  the  rents  in  value,  and  are  in  the  nature  of  customary 
repairs,  and  there  has  been  no  loss  of  evidence  preventing  a 
full  presentation  of  the  case.^^ 

§  1229.  Same — Mortgage  fraudulent  as  to  creditors. — 

An  intention  to  delay  creditors  is  no  defense  to  an  action  for 
redemption ;  ^'  hence,  where  a  bill  to  redeem  is  brought  by  a 
second  mortgagee  against  the  assignee  of  a  prior  mortgage, 
the  latter  cannot  interpose  the  objection,  that  the  second  mort- 
al//a//  V.  Westcott,  15  R.  I.  Z73,  5  30  15  r  j  2,7?,,  5  Atl.  629. 
Atl.  629.  31  75  Mo.  386. 

28  Hall  V.  Westcott,  15  R.  I.  37Z,  32  This  doctrine  is  fully  sustained 
5  Atl.  629.  See  Wade  v.  Lindsey,  by  the  discussion  upon  the  subject 
47  Mass.  (6  Met.)  407;  Stockton  of  improvements  and  compensation 
V  Williams,  1  Doug.  (Mich.)  546;  therefor,  to  be  found,  post,  §  1231. 
Betsey  v.  Torrance,  34  Miss.  132,  33  Crooker  v.  Holmes,  65  Me.  195, 
138;  Livingston  v.  Pure  Iron  Co.  20  Am.  Rep.  687;  Livingston  v. 
9  Wend.  (N.  Y.)  511,  523;  Uni-  Ives,  35  Minn.  55,  27  N.  W.  74; 
versity  of  Vermont  v.  Joslyn,  21  Baldwin  v.  Burt,  43  Neb.  245,  61 
Vt.   52,   61;   Edwards  v.   Roys,   18      N.  W.  601. 

Vt.  473. 

29  18  Vt   473. 


§     1231]  REDEMPTION.  1631 

gage  is  fraudulent  as  to  creditors  of  the  mortgagor.^*  The 
same  rule  appHes  to  a  deed  absolute  in  terms,  but  in  intention 
and  legal  effect  a  mortgage.^^ 

§  1230.  Same — Overdue  second  mortgage. — The  su- 
preme judicial  court  of  Massachusetts,  in  the  case  of  Gerrish 
V.  Black,^^  say  that  it  is  no  defense  to  a  bill  to  redeem  from  a 
mortgage  that  the  defendant  holds  a  second  mortgage  on  the 
same  premises  which  is  overdue;  and  on  a  subsequent  bill  in 
equity  to  obtain  the  discharge  of  the  second,  he  is  not  estopped 
to  set  up  the  second,  the  same  not  having  been  set  up  in  pre- 
vious proceedings. 

§  1231.  Improvements — Allov^/ance  for. — It  is  a  gen- 
eral rule  that  the  mortgagee  in  possession  cannot  make  im- 
provements at  the  expense  of  the  redemptioners,^'  and  the 
making  of  improvements  is  no  defense  to  an  action  to  redeem 
from  a  foreclosure.^®  But  in  those  cases  where  a  purchaser 
under  the  foreclosure  of  a  senior  mortgage  makes  permanent 
improvements  in  good  faith,  with  the  consent,  express  or  im- 
plied, of  a  junior  incumbrancer  w^io  was  not  a  party  to  the 
foreclosure,  the  latter,  on  redeeming,  must  pay  for  the  im- 
provements.^^ And  where  in  redemption  proceedings  it  ap- 
peared that  defendant's  purchase  was  with  notice  of  the  equity 
of  redemption,  but  that  there  was  no  want  of  good  faith  in 
his  assertion  of  title  as  against  the  owner  of  the  equity;  that 
plaintiff  was  present,  but  did  not  openly  assert  his  claim  when 
defendant  took  possession;  and  that  plaintiff"  suffered  defend- 
ant to  expend   considerable   sums   in  making   improvements 

^^Crooker  V.  Holmes,  65  Me.  195,  ^^  Horn  v.  Indianapolis  Nat.  Bk. 

20   Am.   687;   Baldwin   v.   Burt,  43  125  Ind.  381,  25  N.  E.  550,  9  L.R.A. 

Neb.  245,  61  N.  W.  601.  676,  21  Am.  St.  Rep.  231.    See  ante, 

^^  Livingston  v.  Ives,  35  Minn.  55,  §  1189,  1205. 

27  N.  W.  74.  38  See  ante,  §  1228. 

36  122  Mass.  76.    See  same  case  in  ^^  American      Button-Hole,      &c. 

113   Mass.  486,    109  Mass.  474,   104  Co.  v.  Burlington  Mut.  Loan  Assoc. 

Mass.  400,  and  99  Mass.  315.  68  Iowa,  326,  27  N.  W.  271. 


1632 


MORTGAGE    FORECLOSURES. 


[§    1232 


before  objecting,  the  court  held  that  the  defendant,  after  the 
commencement  of  the  action,  might  complete  his  improvements 
so  as  to  make  them  useful,  and  might  recover  their  value  as 
of  the  time  of  the  rendition  of  the  decision.*"  But  where, 
on  a  bill  to  redeem,  the  defendant,  by  the  decree,  is  allowed 
his  improvements,  plaintiff  on  the  hearing  may  show  that  there 
are  no  improvements ;  *^  and  in  those  cases  where  improve- 
ments have  been  made,  he  may  contest  their  reasonableness, 
although  he  did  not  object  to  them  when  he  saw  defendant 
making  them.*^ 

§  1232.  Receiver  on — When  appointed. — In  the  case  of 
the  Boston  and  Providence  Railroad  Corporation  v.  The  New 
York  and  New  England  Railroad  Company,"  it  is  said  that  an 
action  brought  to  redeem  property  from  a  mortgage  foreclo- 
sure, a  receiver  will  not  be  appointed  of  the  property  so  long 
as  a  balance  remains  due  to  the  mortgagee  in  possession,  ex- 
cept in  those  cases  where  such  mortgagee  in  possession  is  mis- 
managing the  property.** 


^^Hadley  v.  Stewart,  65  Wis.  481, 
27  N.  W.  380.  See  Freichnecht  v. 
Meyer,  39  N.  J.  Eq.  (12  Stew.)  551, 
reversing  38  N.  J.  Eq.  (11  Stew.) 
315. 

Thus  in  a  case  where  a  mortgagee 
bid  in  the  mortgaged  premises  at  a 
sale  under  an  execution  obtained  by 
him  on  a  debt  other  than  the 
judgment  debt,  the  mortgagor,  sup- 
posing the  execution  sale  to  be 
vaHd,  surrendered  possession,  and 
the  mortgagee  erected  improve- 
ments. On  ascertaining  that  the 
sale  was  void,  because  of  defects 
in  the  return,  etc.,  the  mortgagor 
filed  a  bill  to  redeem.  The  court 
held  that,  as  a  condition  of  redemp- 
tion, he  must  pay  the  mortgagee  the 
value  of  the  improvements.  Freich- 
necht V.   Meyer,  39  N.  J.   Eq.    (12 


Stew.)  551,  reversing  38  N.  J.  Eq. 
(11  Stew.)  315. 

*^  He  need  not  pay  for  a  build- 
ing burned  before  he  released  his 
equity,  but  after  the  negotiation  for 
the  release  was  concluded.  Mer- 
riani  v.  Goss,  139  Mass.  77. 

^Merriam  v.  Goss,  139  Mass.  77. 

«  12  R.  I.  220. 

*^  In  Chapin  v.  Jones,  11  R.  I.  86. 
90,  23  Am.  412.  the  court  say:  "The 
doctrine  contended  for  by  the 
plaintiff  was  also  held  by  the  su- 
preme judicial  court  of  Massachu- 
setts in  a  replevin  case,  Howe  v. 
Freeman,  80  Mass.  (14  Gray)  566. 
But  this  case  was  carried  to  the 
supreme  court  of  the  United  States 
and  there  reversed.  Freeman  v. 
Hozvc,  15  U.  S.  (24  How.)  450, 
457,  16  L.  ed.  749;  where  the  opin- 


§  1233] 


REDEMPTION. 


1633 


§  1233.  Parties  to  action — Parties  plaintiff. — x\s  in  an 
action  to  foreclose  a  mortgage  *^  the  proper  party  plaintiff  in 
an  action  to  redeem  from  a  mortgage,  whether  before  or  after 
breach  or  sale,  is  the  party  seeking  to  redeem  as  the  owner  of 
the  equity  of  redemption,  or  as  one  having  an  interest  therein, 
the  real  party  in  interest  should  be  the  plaintiff,*®  whether  he 
be  the  original  mortgagor,*'  his  assignee,*^  his  administrator 


ion  was  delivered  by  Nelson  J.,  one 
of  the  oldest  and  most  learned  and 
experienced  justices  of  the  court. 
This  case,  as  observed  by  Mr.  Jus- 
tice Miller,  in  Buck  v.  Colbath,  70 
U.  S.  (3  Wall.)  341,  18  L.  ed.  257, 
took  the  profession  by  surprise,  as 
overruling  the  decision  of  the  su- 
preme judicial  court  of  Massachu- 
setts and  the  opinion  of  Chancellor 
Kent.  But  it  was  upon  this  very 
point  expressly  affirmed  by  the 
United  States  Supreme  court  in 
Buck  V.  Colbath,  70  U.  S.  (3  Wall.) 
334,  341,  18  L.  ed.  257.  It  is  said 
that  the  marshal  on  execution 
against  A  has  no  right  to  levy  upon 
the  property  of  B,  which  is  claimed 
to  be  the  present  case.  The  one 
point  decided  in  those  two  later 
cases  was,  that  in  such  a  case  a 
court  from  which  the  process  issues 
must  of  necessity  decide  the  ques- 
tion, and  the  case  of  Brooks  v. 
Montgomery,  23  La.  An.  450,  is 
exactly  in  point." 

*5  See  ante,  chap.  v. 

*8  See  Thomas  v.  Jones,  84  Ala. 
302,  4  So.  270;  Commercial  Real  Es- 
tate &  Bldg.  Assoc,  v.  Parker,  84 
Ala.  298,  4  So.  268 ;  Butts  v.  Brough- 
ton,  72  Ala.  294;  Hudson  v.  Kelly, 
70  Ala.  393;  Lilly  v.  Dunn,  96  Ind. 
220;  Welch  v.  Stearns,  69  Me.  192; 
Hilton  V.  Lathrop,  46  Me.  297 ;  Far- 
num  V.  Metcalf,  62  Mass.  (8  Cush.) 
Mortg.  Vol.  II.— 103. 


46 ;  Putnam  v.  Putnam,  21  Mass.  (4 
Pick.)  139;  Saunders  v.  Frost,  22 
Mass.  (5  Pick.)  259,  16  Am.  Dec. 
394;  Smith  v.  Manning,  9  Mass. 
422;  Harwood  v.  Underwood,  28 
Mich.  427;  Sutherland  v.  Rose,  A7 
Barb.  (N.  Y.)  144;  Wandle  v.  Tur- 
ney,  5  Duer  (N.  Y.)  661;  Tag  gar  t 
V.  Rogers,  49  Hun  (N.  Y.)  265,  17 
N.  Y.  S.  R.  646;  Elliot  v.  Patton. 
4  Yerg.  (Tenn.)  10;  Dexter  v. 
Arnold.  1  Sumn.  C.  C.  109;  Ander- 
son V.  Slather,  2  Coll.  209;  Holland 
V.  Baker,  3  Hare,  68;  Throughton 
V.  Binkes,  6  Ves.  573,  5  Rev.  401. 

47  Thomas  v.  Jones,  84  Ala.  302, 
4  So.  270 ;  Welch  v.  Stearns,  69  Me. 
192.  See  Ezsell  v.  Watson,  83  Ala. 
120,  3  So.  309;  Downs  v.  Hopkins. 
65  Ala.  508;  Hudson  v.  Kelly,  70 
Ala.  393. 

*8  Farnum  v.  Metcalf,  62  Mass. 
(8  Cush.)  46;  Saunders  v.  Frost,  22 
Mass.  (5  Pick.)  259,  16  Am.  Dec. 
394.  See  Commercial  Real  Estate 
&  Bldg.  Assoc,  v.  Parker,  84  Ala. 
298,  4  So.  268. 

In  a  case  where  A  gave  a  mort- 
gage to  B,  which  was  assigned  by 
B  to  C  to  secure  a  debt,  upon  con- 
dition that  if  B  should  pay  the  debt 
the  assignment  would  be  determined 
and  become  void,  and  the  assigned 
premises  should  revest  in  B.  The 
court  held  that  a  purchaser  of  both 
A's  and  B's  interests  in  the  prem- 


1634 


MORTGAGE    FORECLOSURES. 


[§  1233 


or  executor,*^  his  heirs,^°  his  wife,"  his  widow, ^^  or  a  subse- 
quent mortgagee.^'  All  the  owners  of  the  equity  of  redemp- 
tion must  be  made  parties  to  the  bill  in  equity  to  redeem  the 
mortgage,  or  the  same  will  be  dismissed.**  But  a  mortgagor 
who  has  parted  absolutely  with  all  his  interest  in  the  prop- 


ises  might  maintain  a  bill  in  equity 
against  C  to  redeem  the  mortgage, 
upon  paying  the  amount  due  from 
B  to  C.  Farnum  v.  Metcalf,  62 
Mass.  (8  Cush.)  46. 

Neither  the  assignee  of  the  equity 
of  redemption,  nor  the  assignee  of 
the  statutory  right  of  redemption,  is 
a  proper  party  complainant  to  a  bill 
by  a  mortgagor  to  redeem  after 
sale ;  and  a  bill  in  which  such  per- 
sons are  complaints  is  demurrable 
for  misjoinder  of  parties.  Com- 
mercial Real  Estate  &  Bldg.  Asso. 
V.  Parker,  84  Ala.  298,  4  So.  268. 

49  Wood  V.  Holland,  57  Ark.  198, 
21  S.  W.  223;  Lilly  v.  Dunn,  96 
Ind.  220.  See  Harwood  v.  Under- 
wood, 28  Mich.  427. 

The  personal  representative  of 
one  of  the  mortgagees  who  is  dead 
is  a  necessary  party  in  a  bill  to  re- 
deem from  the  mortgage.  Wood  v. 
Holland,  57  Ark.  198,  21  S.  W.  223. 

Same — The  mere  levy  of  an  exe- 
cution upon  land  to  which  the  judg- 
ment debtor  never  had  any  title,  and 
in  which  he  never  held  any  leviable 
interest,  does  not  constitute  any 
lien  or  charge  thereupon,  or  in- 
vest the  execution  creditor  with  any 
right  or  title,  on  which  to  found 
an  action  for  the  redemption  of  a 
mortgage  upon  the  same.  Harwood 
V.   Underwood,  28  Mich.  427. 

50  Lilly  v.  Dunn,  96  Ind.  220. 

51  Tag  gar  t  v.  Rogers,  49  Hun  (N. 
Y.)  265,  17  N.  Y.  S.  R.  646. 


52  Butts  v.  Broughton,  72  Ala. 
294 ;  Lilly  v.  Dunn,  96  Ind.  220. 

53  Wilson  v.  Hayes,  40  Minn.  531, 
42  N.  W.  467,  4  L.R.A.  196,  12  Am. 
St.  Rep.  754,  40  Alb.  L.  J.  8. 

Thus  it  has  been  said  that  where 
a  mortgagee  sells  the  note,  but  exe- 
cutes no  assignment  of  the  mort- 
gage securing  the  same,  and  subse- 
quently repurchases  the  same,  the 
equitable  transfers  of  the  beneficial 
interest  in  the  mortgage  effected  by 
the  sale  and  repurchase  of  the  debt 
are  not  "assignments,"  within  the 
meaning  of  Minn.  Gen.  Stat.  1878, 
c.  81,  §  14,  which  the  mortgagee  is 
required  to  produce  to  the  person 
or  officer  from  whom  he  proposes 
to  redeem.  Wilson  v.  Hayes,  40 
Minn.  531,  42  N.  W.  467,  4  L.R.A. 
196,  12  Am.  St.  Rep.  754,  40  Alb. 
L.  J.  8. 

54  Welch  V.  Stearns,  69  Me.  192. 
Joinder  of  mortgagees  in  a  bill  to 

redeem. — In  a  case  where  F  was 
first  mortgagee,  C  was  second 
mortgagee,  and  C,  S  and  W  were 
third  mortgagees,  and  C  assigned 
to  F  the  second  and  all  his  interest 
in  the  third  mortgage,  it  was  held 
that  S  and  W  could  maintain  an 
action  to  redeem  without  joining  C 
as  a  party  plaintiff,  and  that  they 
could  have  done  so,  even  if  C  had 
not  assigned,  for  as  to  the  second 
mortgage  his  interest  was  adverse 
to  theirs.  It  was  also  held  that  re- 
demption could  be  made  from  F,  by 
tendering   him   the   amount    of   the 


§    1234]  REDEMPTION.  1635 

erty  is  not  a  necessary  party  to  a  bill  by  his  grantee  '^  to  set 
aside  a  sale  under  a  power  in  the  mortgage,  at  which  the 
mortgagee  became  the  purchaser,  and  to  redeem.*^ 

The  wife  of  the  mortgagor,  who  executed  the  mortgage 
with  her  husband,  but  who  was  not  made  a  party  to  the 
foreclosure  action,  can  maintain  an  action  during  the  lifetime 
of  her  husband  to  redeem  the  mortgaged  premises  from  the 
sale ;  "  and  after  his  death  she  is  properly  joined  with  the  heirs 
in  a  bill  to  redeem.^*  And  it  is  said  that  in  a  suit  to  redeem 
a  senior  mortgage,  the  administrator,  widow  and  heirs  of  a 
deceased  mortgagee  may  join  as  plaintiff s.^^ 

§  1234.  Same — Parties  defendant. — The  general  rule  is 
that  all  persons  who  will  be  affected  adversely  by  the  decree,®** 
and  those  only,  should  be  made  parties  defendant  on  a  bill 
to  redeem."  Where  there  are  no  outstanding  interests  except 
those  of  the  mortgagee,  he  is  the  only  proper  party;  but  if 
he  is  only  a  trustee  for  another,  his  cestui  que  trust  must  be 

first  and  second  mortgages.    Sau)id-  Kelly,  70  Ala.  393;  Lehman  v.  Col- 

ers  V.   Frost,  22   Mass.    (5   Pick.)  Hits,    69    Ala.    127;    Woodward    v. 

259,  16  Am.  Dec.  394.  Wood,    19   Ala.   213;    Doe   v.   Mc- 

55  See  Young  v.  Miner,  145  Wis.  Loskey,  1  Ala.  708 ;  Essley  v.  Sloan,. 

71,  129  N.  W.  781.  16  111.  App.  63;  Millett  v.  Blake,  81 

^^  Thomas  v.  Jones,  84  Ala.  302,  Me.    531.    18    Atl.    293;    Linnell    v.. 

4  So.  270.  Layford,    72    Me.    280;    Rowell    v. 

57  Taggart  v.  Rogers,  49  Hun  (N.  Jewett,  69  Me.  293;  Kennebec  &  P. 

Y.)   265,  17  N.  Y.  S.  R.  646.  R.  Co.  v.  Portland  &  K.  R.  Co.  54- 

^^  Butts  V.  Broughton,  72  Ala.  294.  Me.  173;  Brown  v.  Johnson,  53  Me- 

^^  Lilly  V.  Dunn,  96  Ind.  220.  246;  Seals  v.  Cobb,    51    Me.    348; 

60  Except  where  mortgagee  pur-  Haskins  v.  Hawkes,  108  Mass.  379;. 
posely  complicates  the  case  and  em-  Stillwell  v.  Hamm,  97  Mo.  579; 
barrasses  the  parties  seeking  to  re-  Copeland  v.  Yoakum's  Adm'r.  ZS 
deem,  by  numerous  conveyances.  Mo.  349;  Riley  v.  McCord,  21  Mo. 
Davis  V.  Duffie,  18  Abb.  (N.  Y.)  285;  Loney  v.  Courtnay,  24  Neb. 
Pr.  360,  365;  Yates  v.  Hornby,  2  580,  39  N.  W.  611;  Davis  v.  Duffie, 
Atk.  237.  See  Dias  v.  Merle.  4  18  Abb.  (N.  Y.)  Pr.  365;  Johnson 
Paige  Ch.  (N.  Y.)  259;  Parlmer  v.  Golden.  31  N.  Y.  S.  R.  410,  9  N. 
V.  Carlisle,  1  Sim.  &  S.  423.  Y.  Supp.  739 ;  Winslow  v.  Clark,  2 

61  See  Jones  v.  Richardson,  85  Lans.  (N.  Y.)  381;  Dias  v.  Merle, 
Ala.    463,    5    So.    194;    Hudson    v.  4  Paige  Ch.    (N.  Y.)   257;   Yelver- 


1636 


MORTGAGE    FORECLOSURES. 


[§  1234 


made  a  party;  ®^  if  he  has  sold  his  mortgage  his  grantees  are 
necessary  parties.^'  Anyone  apparently  having  an  equitable 
interest  in  the  premises,  liable  to  be  affected  by  the  decree  for 
redemption,  should  be  made  a  party. ^* 

Where  the  property  has  been  sold  under  a  foreclosure  sale, 
and  the  state  statute  requires  that  redemption  must  be  made 
from  the  purchaser  or  those  claiming  under  him,  yet  if  the 
purchaser  subsequently  alienates  the  land,  the  mortgagor  or 
judgment  creditor  seeking  to  redeem  must  have  sufficient  no- 
tice to  put  him  on  inquiry  that  the  purchaser  has  aliened  the 
land  and  who  has  the  title  before  he  can  be  required  to  make 


ton  V.  Seldon,  2  Sandf.  (N.  Y.) 
481;  Childs  v.  Cliilds,  10  Ohio  St. 
344.  75  Am.  Dec.  512;  Youman  v. 
Elmira  &  IV.  R.  Co.  65  Pa.  St. 
278;  Chaddick  v.  Cook,  32  Beav. 
70,  9  Jur.  N.  S.  454;  N orris  v. 
Marshall,  5  Madd.  475;  Wetherell 
V.  Collins,  3  Madd.  255 :  Hobart  v. 
Abbott,  2  Pr.  Wms.  643;  Kelso  v 
Norton,  74  Kan.  442,  87  Pac.  184; 
Strout  V.  Lord  as  ex'r  103  Me. 
410,  69  Atl.  694. 

When  a  mortgage  on  lands,  or  a 
•deed  absolute  in  form,  though  in 
fact  a  mortgage,  is  given  for  the 
indemnity  of  a  surety,  and  a  pur- 
chaser from  the  mortgagor  seeks 
to  redeem,  the  debt  not  being  satis- 
fied, the  creditor  is  a  necessary 
party  to  the  bill.  Hudson  v.  Kelly, 
70  Ala.  393. 

In  railway  mortgages,  all  who 
have  been  so  connected  with  the 
mortgages  as  to  render  them  liable 
for  income  under  them,  should  be 
made  parties  defendant.  Kennebec 
&  P.  R.  Co.  V.  Portland  &  K.  R. 
Co.  54  Me.  173. 

62  See  Woodward  v.  Wood,  19 
Ala.  213 ;  Wetherell  v.  Collins,  3 
Madd.  255. 


^^  Davis  V.  Duffie,  18  Abb.  (N. 
i'.)  Pr.  360. 

The  receiver  of  the  mortgagee 
is  a  necessary  party.  Southern 
Mutual  Building  &  Loan  Ass'c  v. 
Andrews,  122  Ala.  598,  26  So.  113. 

^^Rowell  v.  Jewett,  69  Me.  293. 
See  Millett  v.  Blake,  81  Me.  531, 
10  Am.  St.  Rep.  275,  18  Atl.  293; 
Pierce  v.  Le  Monier,  172  Mass. 
508,  53  N.  E.  125;  Crummett  v. 
Littlefield  as  adm'r  etc.  98  Me.  317, 
56  Atl.  1053;  First  National  Bank 
V.  Elliott,  125  Ala.  646,  47  L.R.A. 
742,  82  Am.  St.  Rep.  268,  27  So.  7 ; 
Marbury  Lumber  Co.  v.  Posey,  142 
Ala.  394,  38  So.  242;  Sadler  v. 
Jefferson,  143  Ala.  669,  39  So.  380. 

The  heirs  at  law  of  a  deceased 
partner  are  proper  if  not  necessary 
parties  to  a  bill  to  redeem  lands 
which  were  mortgaged  to  the 
partnership.  Whisenhant  v.  Hy- 
bart,  160  Ala.  578,  49  So.  760. 

As  assignee  of  a  mortgage,  al- 
though he  has  no  interest  in  it  at 
the  time  of  an  attachment  of  the 
equity  of  redemption,  is  a  proper 
party  to  a  bill  to  redeem,  no  tender 
to  him  or  demand  for  account  is 
necessary.    Millett  v.  Blake,  81  Me. 


§    1234]  REDExMPTION.  1637 

tender  to  the  alienee.^^  And  it  has  been  said  tliat  where  the  pur- 
chaser of  premises  at  foreclosure  sale,  in  an  action  to  which  the 
owner  of  the  equity  of  redemption  was  not  made  a  party, 
mortgages  the  same  premises,  which,  on  foreclosure  sale  under 
the  latter  mortgage  are  purchased  by  another  than  the  mort- 
gagee, such  mortgagee  having  parted  with  all  interest  in  the 
premises,  is  not  a  proper  party  to  an  action  to  redeem,  and 
does  not  become  such  by  an  allegation  that  she  is  collecting 
rents,  where  she  does  not  claim  to  be  a  mortgagee  in  posses- 
sion.®^ 

The  supreme  court  of  Nebraska,  in  the  case  of  I-oney  v. 
Courtney,®'  say  that  the  fact  that  the  defendants  in  an  action 
in  equity  to  redeem  from  a  void  mortgage  foreclosure  are 
donees  of  the  mortgage,  if  they  are  in  fact  the  owners  thereof, 
will  not  bar  their  right  to  recover  from  the  mortgagor  what  is 
equitably  due. 

In  those  states  where  the  mortgage  does  not  carry  the 
present  title  to  the  land,  on  the  death  of  the  mortgagee  his 
personal  representative  is  the  only  necessary  party ;  ®*  but  in 
all  those  jurisdictions  in  which  the  common  law  theory  of 
mortgages  prevail,  it  is  thought  the  heir-at-law,  legatee,  de- 
visee and  other  person  in  whom  the  estate  is  vested  is  a  neces- 
sary party  to  the  action.®^ 

531,    10  Am.   St.   Rep.  275,   18   Atl.  In  Haskins  v.  Hawkes,  supra,  the 

293.  court  say:     "The  children  and  heirs 

65  Lehman  v.  Collins,  69  Ala.  127.  of  the  Hawkes,  who  are  made  de- 

^^  Johnson  v.  Colder.  31  N.  Y.  S.  fendants   in   the    bill,    entered    the 

R.  410,  9  N.  Y.  Supp.  739.  mortgaged    premises    to    foreclose, 

67  24  Neb.  580.  39  N.  W.  611.  and  took  the  rents  and  profits.    But 

68  Copcland  v.  Yoakum's  Adm.  38  they  were  mistaken  in  supposing 
Mo.  349.  they  had  such  a  title  as  would  en 

69  See  Jones  v.  Richardson,  85  able  them  to  foreclose,"  citing  Pal- 
Ala.  463.  5  So.  194;  Haskins  v.  mer  v.  Stevens,  65  Mass.  (11 
Hawkes,  108  Mass.  379;  Copelandv.  Cush.)  147;  Foy  v.  Cheney.  31 
Yoakum's  Adm.  2,%  Mo.  3A9;  Riley's  Mass.  (14  Pick.)  404;  Smith  v. 
Adm.    V.    McCord's    Adm.    21    Mo  Dyer,   16  Mass.  18. 

285 ;  Oshurn  v.  Fallows.  1  Russ.  ^ 
M.  741. 


1638  MORTGAGE    FORECLOSURES.  [§    1235 

§  1235.  The  decree — Generally. — The  redemption  of  a 
mortgage  will  not  be  decreed  on  any  terms  other  than  the 
payment  of  the  mortgagee's  claim  and  costs; '°  and  the  decree, 
where  the  plaintiff  prevails,  usually  requires  this  to  be  done 
by  a  day  named,  in  default  to  be  perpetually  foreclosed,  and 
the  bill  be  dismissed  with  costs. '^^  In  those  cases  where  it  is 
found  that  nothing  is  due  the  mortgagee,  the  decree  will  be 
for  the  possession  of  the  mortgaged  premises,  and  awarding 
a  writ  of  possession.'^  In  Michigan,  on  a  bill  to  redeem,  the 
decree  should  provide  that  if  the  redemption  money  is  not 
paid  in  accordance  with  the  decree,  the  remedy  will  be  by  sale 
as  on  foreclosure,  and  not  by  strict  foreclosure.'' 

In  those  cases  where  it  is  sought  to  redeem  from  an  irregu- 
lar or  invalid  foreclosure  sale,  it  is  thought  that  the  decree 
should  not  provide  redemption  from  a  void  sale,  but  from  an 
unforeclosed  security.'* 

It  is  thought  that  a  decree  of  redemption  from  a  fore- 
closure sale  under  a  power  in  a  mortgage,  providing  that  if 
the  amount  required  to  be  paid  by  way  of  redemption  is  not 
paid  within  the  time  named  the  mortgage  shall  stand  fore- 

'''''  Cowles   V.    Marble,     Zl     Mich.  found   due,  a   decree   may  be  ren- 

158.  dered  in  defendant's  favor  without 

'1  Segrest  v.   Segrest's  Heirs,  38  a   cross-bill.     Polk   v.   Mitchell,  85 

Ala.  674;  Bremer  v.  Calumet  Canal  Tenn.  634. 

Co.  127  III.  464;  Pitman  v.  Thorn-  Where  a   cross   bill   prays   to   be 

ton,  66  Me.  469;  Cowles  v.  Marble,  allowed    to    redeem    from    a    fore- 

27  Mich.  158;  Hacard  v.  Robinson,  closure,  a  decree  directing  the  pay- 

15   R.   I.  226  2  Atl.   433 ;    Gage   v.  ment  of  a  certain    sum    to    redeem 

Porter,  64  N.  H.  619,   15  Atl.   147.  should  not  direct  a  conveyance,  by 

A  decision  giving  a  complainant  the  party,  and,  in  default  thereof, 

leave  to  redeem  on  the  payment  of  by  a  master  in  chancery,  but  should 

the  mortgage  debt  is  a  determina-  conclude  that,  in  default  of  paying 

tion   in  his   favor,  where  no  other  the  amount  required,  the  cross  bill 

relief    is   sought.      Gage    v.    Porter,  should    be    dismissed.      Bremer    v. 

64  N.   H.  619,    15   Atl.    147,   and  is  Calumet  &  C.  Canal  &  D.  Co.  127 

a   final   decree.     Hazard  v.   Robin-  111.  464,  18  N.  E.  321. 

son,  IS  R.  I.  226,  2  Atl.  433.  72  Gerrish  v.  Block,  122  Mass.  76. 

Where  a  mortgagor  asks  for  an  '3  Meigs   v.    McFarlan,   72    Mich, 

injunction,   prays   for    an    account,  194,  40  A.  W.  246. 

and  offers  to  pay  whatever  shall  be  '*  Grover  v.  Fox,  36  Mich.  461. 


§  1236] 


REDEMPTION. 


1639 


closed,  is  not  on  its  face  erroneous  because  it  does  not  provide 
for  a  sale  on  failure  to  redeem,  in  those  cases  where  plaintiffs 
do  not  ask  for  a  sale  or  a  modification  of  the  decree.'^  But 
where  a  judgment  is  entered,  fixing  the  amount  due,  and  pro- 
viding that  either  party  may  apply  to  the  court  for  further 
directions,  an  application  for  a  reference  to  ascertain  the 
value  of  the  use  of  the  premises  will  be  denied.'^ 

§  1236.  Same — Time  of  redemption  after  decree. — The 

time  within  which  a  redemption  may  be  made  where  the 
plaintiff  prevails,  is  in  the  discretion  of  the  court,  in  the  ab- 
sence of  a  controlling  statute,  and  is  usually  regulated  by  the 
circumstances  of  each  particular  case ;  "^"^  but  it  is  usually  six 


'^^  Martin  v.  Ratcliff,  101  Mo. 
254,  20  Am.  St.  Rep.  605,  13  S.  W. 
1051. 

The  supreme  court  of  Indiana  say 
that  where,  in  the  special  finding  in 
proceedings  to  redeem,  it  is  not 
stated  that  the  principal,  interest, 
and  costs  of  the  judgment  were 
paid,  or  that  the  principal  and  inter- 
est of  the  mortgage  were  paid,  the 
inference  is  that  the  redemption 
was  not  from  the  decree,  but  from 
the  mortgage.  Where  the  plain- 
tiffs were  not  bound  by  the  decree, 
they  had  a  right  to  redeem  from 
the  mortgage,  irrespective  of  the 
decree.  The  amount  they  were 
bound  to  pay  to  entitle  them  to  re- 
deem depended  upon  the  covenants 
of  the  mortgage,  and  the  rights  of 
the  mortgagee  in  possession  under 
the  mortgage.  The  rights  of  the 
parties,  both  the  mortgagee  and  the 
redemptioners,  must  be  determined 
from  the  mortgage,  and  not  from 
the  decree.  Johnson  v.  Hosford. 
110  Ind.  572,  10  N.  E.  407. 

''^  Hollingsworth  v.  Campbell.  28 
Minn.  18. 


A  conditional  judgment,  rendered 
on  a  writ  of  entry  brought  by  a 
mortgagee  against  the  mortgagor  in 
possession,  is  not  conclusive  as  to 
the  amount  then  due  against  a  pur- 
chaser of  the  equity  of  redemption 
before  the  bringing  of  the  writ,  on 
a  bill  in  equity  by  him  to  redeem. 
Nor  is  such  purchaser  concluded  as 
to  the  amount  due  by  the  fact  that 
he  was  made  a  party  to  a  fore- 
closure proceeding  in  another  state, 
the  mortgage  covering  land  there 
as  well  as  in  the  state  wherein  the 
purchaser  seeks  to  redeem,  and  in 
that  proceeding,  the  value  of  the 
land  in  that  state  having  been  de- 
termined. Dooley  v.  Potter,  140 
Mass.  49. 

"^"^  Bremer  v.  Callumet  &  C. 
Canal  &■  Dock  Co.  127  111.  464,  18 
N.  E.  321 ;  Decker  v.  Patton,  20  111. 
App.  210,  aff'd  120  111.  464.  11  X. 
E.  897:  Dennett  v.  Cadman.  158 
Mass.  371,  33  N.  E.  574;  Mills  v. 
Stehle.  22  Neb.  740,  36  N.  W.  142 ; 
Murphy  v.  Netv  Hampshire  Sav. 
Bank.  63  N.  H.  362 :  Clark  v.  Rev- 


1640 


MORTGAGE    FORECLOSURES. 


[§   1236 


months,'*  or  a  year.''  One  who  procures  a  decree  allowing 
him  to  redeem  within  a  specified  time  on  the  happening  of  a 
certain  contingency  is  bound  by  the  decree.^"  He  cannot,  six 
years  afterwards,  seek  to  avoid  it.*^  But  it  is  said  that  where 
on  a  bill  to  redeem,  a  decree  is  rendered  fixing  the  amount 
and  time  of  payment,  the  fact  that  the  mortgagor  fails  to 
make  such  payment  does  not  make  the  foreclosure  absolute 
without  any  further  order,  so  as  to  bar  the  right  to  redeem; 
and  if  the  mortgagee  thereafter  receives  rents  from  the  tenants 
in  possession,  no  further  proceedings  can  be  had  until  there 
has  been  a  new  accounting  and  a  new  order  fixing  the  amount 
and  time  of  payment.*^ 


burn,  75  U.  S.  (8  Wall.)  318,  324, 
19  L.  ed.  354,  356. 

In  an  action  by  a  first  mortgagee 
who  has  foreclosed  and  purchased 
a  decree  to  compel  a  junior  mort- 
gagee to  redeem,  is  not  void  for 
failure  to  provide  within  what  time 
he  may  redeem.  Evans  v.  Atkins, 
75  Iowa,  448,  39  N.  W.  702. 

A  decree  in  an  ordinary  bill  to 
redeem  in  which  no  peculiar  relief 
is  prayed  for.  and  where  there  has 
been  no  suggestion  that  the  plain- 
tiffs are  not  ready  to  perform  the 
offer  in  the  bill,  properly  requires 
them  to  redeem  within  a  time 
stated,  instead  of  allowing  redemp- 
tion at  any  time  before  a  valid  and 
effectual  foreclosure  of  the  mort- 
gage by  a  new  execution  of  the 
power  of  the  sale  therein,  or  other- 
wise. Dennett  v.  Codrnan.  158 
Mass.  371,  2,2  N.  E.  574. 

"^^  Decker  v.  Patton,  20  111.  App. 
210,  aff'd  120  III.  464.  11  N.  E.  897; 
H  oiling  sworth  v.  Koon,  117  111. 
511,  6  N.  E.  148.  8  Id.  193;  Pcrrine 
V.  Dunn,  4  John.  Ch.   (N.  Y.)   140; 


Waller  v.  Harris,  7  Paige  Ch.  (N. 
Y.)  167;  Dunham  v.  Jackson,  6 
Wend.  (N.  Y.)  22;  Stephenson  v. 
Kilpatrick,  166  Mo.  262,  65  S.  W. 
773. 

"^^  Murphy  v.  New  Hampshire 
Sav.  Bk.  63  N.  H.  362.  See  Hol- 
Ungsworth  v.  Campbell,  28  Minr. 
18,  8  N.  W.  873;  Lucken  v.  Fickle, 
42  Ind.  App.  445,  84  N.  E.  561. 

The  provision  of  Minn.  Gen.  St. 
1878,  c.  81,  §  43.  that  "in  case  of 
strict  foreclosure,  no  final  decree  of 
foreclosure  shall  be  rendered  until 
the  lapse  of  one  year  after  the  judg- 
ment adjudging  the  amount  due  on 
such  mortgage,"  applies  to  a  judg- 
ment in  an  action  to  redeem,  so 
that  it  is  erroneous  if  it  limits  the 
time  for  redemption  to  a  period  less 
than  one  year  from  the  judgment. 
Hollingsworth  v.  Campbell.  28 
Minn.  18,  8  N.  W.  873. 

^0  Brown  v.  Webber.  103  Me.  60, 
68  Atl.  456. 

"  Kolle  v.  Clausheide.  99  Ind.  97. 

82  Tetraitlt  v.  Labbe.  155  Mass. 
497,  30  N.  E.  173. 


§     1237]  REDEMPTION.  1641 

§  1237.  Same — Same — Extension. — Upon  a  bill  to  re- 
deem, judgment  in  favor  of  plaintiff  and  a  decree  that  the 
mortgrge  debt  and  costs  shall  be  paid  and  redemption  made 
within  a  specified  time,  the  time  stated  in  the  lecree  will  not 
be  extended  so  as  to  permit  a  redemption  to  be  made  after 
the  time  fixed  has  elapsed. ^^  Thus,  in  a  case  where,  upon  a 
bill  to  redeem,  a  decree  was  rendered,  requiring  the  complain- 
ant to  pay  into  court  by  a  day  certain  the  amount  reported  to  be 
due  on  the  mortgage  debt,  and  ordering  his  bill  to  be  dismissed 
on  his  failure  to  make  the  payment  within  the  prescribed  time, 
the  court  held  that  there  was  no  error  in  refusing  to  extend 
the  time  and  in  dismissing  the  bill  after  default,  as  the  case 
was  not  shown  to  be  one  of  fraud,  accident,  or  mistake,  un- 
mixed with  negligence  on  the  part  of  the  complainant  him- 
self.'* 

An  extension  of  time,  however,  is  in  the  sound  discretion 
of  the  court,  and  will  usually  be  granted  where  the  failure  to 
pay  at  the  designated  time  was  occasioned  by  fraud,  accident, 
or  mistake,  or  to  enable  contribution  to  the  redemption  fund 


88  Segrest  v.   Segrest's   Heirs.  38  titude  in  the  case  is  altogether  dif- 

Ala.  674.  ferent.     In  the  foreclosure  suit  the 

The  earliest  decision  upon  the  proceeding  is  against  him,  to  corn- 
question  whether  the  chancellor  pel  the  payment  of  the  debt,  or 
will  allow  an  extension  of  the  time  effect  a  forfeiture  of  his  estate. 
prescribed  in  his  decree  for  the  While,  in  a  redemption  suit,  "he 
payment  of  the  mortgage  debt,  is  comes  into  court  saying,  'here  is  the 
that  of  Lord  Eldon  in  Novosietski  money,  give  me  my  estate.'  "  Lord 
V.  Wakefield,  17  Ves.  417.  In  that  Eldon's  decision  is  followed  in 
case  the  lord  chancellor  distin-  Falkner  v.  Bolton,  7  Sim.  319.  See 
guished  between  suits  in  fore-  Perrine  v.  Dunn,  4  John.  Ch.  (N 
closure  and  suits  to  redeem,  and  Y.)  140:  Brinckerhaff  v.  Lansing, 
while  he  concedes  that  the  practice  4  John.  Ch.  (X.  Y.)  65.  8  Am.  Dec. 
is  to  extend  the  time  in  the  for-  538;  Waller  v.  Harris.  7  Paige  Ch. 
mer  case,  he  denies  that  there  is  any  (N.  Y.)  167;  Smith  v.  Bailey.  10 
precedent  for  the  extension  in  the  Vt.  163 ;  Turner  v.  Turner.  3 
latter,  and  refuses  to  begin  such  a  Murp.  (Va.)  66. 
practice.  The  reason  given  for  the  ^4  Segrest  v.  .Segrest's  Heirs.  38 
decision  is,  that  the  mortgagor's  at-  Ala.  674. 


1642  MORTGAGE    FORECLOSURES.  [§    1238 

to  be  made,'^  but  not  where  the  plaintiff's  negligence  has  con- 
tributed to  such  faihire.'^ 

§  1238.  Same — Where  sold  in  parcels. — In  the  case  of 
Smith  V.  Buse,*'''  the  mortgage  covered  a  great  many  separate 
parcels  of  land,  which,  at  the  foreclosure,  were  sold  separately 
to  various  persons,  and  a  mortgagor  brought  an  action  against 
the  purchasers  to  have  the  sale  adjudged  void  and  for  leave 
to  redeem  from  the  mortgage,  and  judgment  in  that  action  was 
rendered  in  favor  of  the  defendant,  the  court  held,  on  appeal, 
that  this  w^as  not  res  judicata  upon  the  claim  of  any  purchaser 
to  have  acquired  the  title  to  any  particular  lot  of  the  mort- 
gaged premises. 

§  1239.  Same — On  bill  by  widow. — We  have  already 
seen  that  the  wife  or  widow  may  maintain  a  bill  to  redeem. ^^ 
It  is  said  that  in  an  action  by  a  widow  to  redeem  from  a  fore- 
closure of  a  mortgage  given  by  her  husband  alone  for  the 
purchase  price  of  land,  and  foreclosed  in  his  lifetime,  without 
her  being  made  a  party,  if  anything  is  found  due  on  the  mort- 
gage, a  decree  should  be  rendered  for  the  sale  of  the  two- 
thirds  of  the  land  held  by  the  defendant,  and,  in  case  of  a 
failure  to  realize  a  sum  sufficient  to  pay  the  same,  then  for  the 
sale  of  the  plaintiff's  one-third. ^^  . 

§  1240.  Same — Sale  not  decreed. — It  is  thought  that  in 
the  absence  of  any  circumstances  taking  the  case  out  of  the 

85  See  ante,  §§    1208,    1212.  Y.)  65,  8  Am.  Dec.  538;  Chicago  D. 

86  Segrest  v.  Segrest's  Heirs,  38  &  V .  R.  Co.  v.  Fosdick,  106  U.  S. 
Ala.  674.  See  Emmons  v.  Vauzle,  47,  27  L.  ed.  47,  1  Supt.  Ct.  Rep. 
78  Mich.  171;  Ciley  v.  Huse,  40  10;  Jenkins  v.  Eldridge,  1  Woodb. 
N.  H.  362;  Brinkerhoff  v.  Lansing,  &  M.  C.  C.  61;  Monkhouse  v.  Bed- 
4  John.  Ch.  (N.  Y.)  65,  8  Am.  Dec.  ford.  2  Madd.  382. 

538;  Kopper  v.  Dyer,  39  Vt.  477,  59  87  35  Minn.  234,  28  N.  W.  220, 

Am.  Dec.  742.     See  Kolle  v.  Claus-  88  See  ante,  §§  1133,  1134. 

heide,  99  Ind.  100;  Perrine  v.  Dunn,  ^^  Barr  v.    Van  Alstine,   120  Ind. 

4  John.  Ch.  (N.  Y.)  140;  Brincker-  590,  22  N.  E.  965 
hoff   V.   i^ansing,  4   John.    Ch.    (N. 


§    1242]  REDEMPTION.  1643 

ordinary  rule,  the  complainant  in  a  bill  to  redeem  will  not  be 
granted  a  decree  of  sale  as  in  a  foreclosure,  subject  to  the 
statutory  right  of  redemption.^" 

§  1241.  Same — Accounting  for  value. — In  those  cases 
where  the  mortgaged  property  has  been  sold  or  used  by  the 
mortgagee,  or  its  condition  changed  so  that  it  cannot  be  re- 
stored to  the  mortgagor,  the  only  relief  available  to  the  latter 
in  an  action  to  redeem  is  to  have  an  accounting  and  be  allowed 
the  value  of  the  property  when  taken  from  him.^^  In  the  case 
of  Adams  v.  Sayre,^^  on  a  bill  by  a  mortgagor  to  redeem  on 
the  ground  that  the  purchaser  bought  by  collusion  with  the 
mortgagee,  or  in  the  alternative,  that  he  was  plaintiff's  agent 
and  could  not  purchase  for  himself,  the  chancellor  decreed 
relief  without  stating  under  which  aspect  of  the  bill,  and  or- 
dered the  register  to  state  an  account.  On  affirmance  of  this 
decree  under  the  second  aspect,  the  court  held  that  the  chan- 
cellor might  modify  his  instructions  to  the  register  as  to  the 
principles  on  which  the  account  should  be  stated.'^ 

§  1242.  Same — Appeal  and  new  trial. — It  has  been  said 
the  right  to  appeal  from  a  decree  of  the  circuit  court  in  fore- 
closure, which  wrongfully  denied  the  right  to  redeem,  is  abso- 
lute and  does  not  depend  upon  any  offer  to  redeem  within  the 
time  allowed  thereby  by  statute.^^  The  supreme  court  of  In- 
diana say  that  in  a  suit  to  redeem  and  procure  the  cancellation 
of  a  mortgage,  although  the  complaint  prays  for  the  quieting  of 
title,  a  new  trial  as  of  right  cannot  be  had.^^  The  rule  is  well 
settled  that  a  reviewing  court  will  not  reverse  a  decree  in 

^fi  Decker  v.  Patton,  20  111.  App.  ^^  Adams  v.  Sayre,  76  Ala.  509. 

210;   Gillis  v.  Martin,  2  Dev.    (N.  ^^  Mason  v.  Northwestern  Mut.  L. 

C.)  Eq.  470,  25  Am.  Dec.  729.  Ins.  Co.   106  U.   S.   163,  27  L.   ed. 

91  Mozvry  v.  First  Nat.  Bk.  Bara-  129. 

boo,  54  Wis.  38,  11  N.  W.  247.  95  ygss  v.  Eller,  109  Ind.  260,  10 

92  76  Ala.  509.  N.  E.  74. 


1644 


MORTGAGE    FORECLOSURES. 


[§     1243 


chancery  for  an  immaterial  departure  from  the  technical  rules, 
when  it  can  see  that  no  harm  has  resulted  to  the  appellant.^® 

§  1243.  Costs  on  redemption. — The  general  rule  is  that 
in  an  action  to  redeem  the  costs  must  be  paid  by  the  plain- 
tiff, even  where  he  prevails ;  ®'  but  they  may  be  imposed  upon 
the  defendant  if  he  unreasonably  refuses  to  receive  the  money 
when  it  is  tendered  to  him.^^  or  sets  up  an  unconscionable  or 
frivolous  defense  causing  unnecessary  delay  and  expense.^^ 
In  those  cases  where  both  parties  are  equally  at  fault  a  court 
of  equity  will  divide  the  costs. ^  In  the  case  of  Hall  v.  Gard- 
ner,^ it  is  said  that  where  a  mortgagee,  upon  a  request  in 
writing,  from  the  mortgagor,  for  an  account  in  writing  for  the 
amount  due  on  the  mortgage,  renders  an  account  which  is  im- 


^^Allis  V.  Ins.  Co.  197  U.  S.  144. 
See  De  Bartlett  v.  De  Wilson,  52 
Fla.  497,  42  So.  189. 

^"^  Lamb  v.  Jaffrey,  A7  Mich.  28, 
10  N.  W.  65.  See  Blum  v.  Mitchell, 
59  Ala.  535 ;  Harper  v.  Ely,  70  111. 
581 ;  Horsford  v.  Johnson,  7A  Ind. 
479;  Hall  v.  Gardner,  71  Me.  233; 
Turner  v.  Johnson,  95  Mo.  431,  6 
Am.  St.  Rep.  62;  Bean  v.  Brackett. 
35  N.  H.  88;  Forman  v.  Bulson.  30 
N.  J.  Eq.  (3  Stew.)  493;  Phillips 
V.  Hulsizer,  20  N.  J.  Eq.  (5  C.  E. 
Gr.)  308;  Gage  v.  Brewster,  31  N. 
Y.  218;  Vroom  v.  Ditmas,  4  Paige 
Ch.  (N.  Y.)  526;  Benedict  v.  Gil- 
man,  4  Paige  Ch.  (N.  Y.)  58; 
Brockway  v.  Wells,  1  Paige  Ch.  (N. 
Y.)  617;  Slee  v.  Manhattan  Co.  1 
Paige  Ch.  (N.  Y.)  48;  Moore  v. 
Cord,  14  Wis.  213;  Wetherell  v. 
Collins,  3  Madd.  255 ;  Lynch  v. 
Ryan,  137  Wis.  13,  129  Am.  St. 
Rep.  1040,  118  N.  W.  174;  Liskey 
V.  Snyder,  56  W.  Va.  610,  49  S.  E. 
515.  See  Ryer  v.  Morrison.  21  R. 
I.  127,  42  Atl.  509. 


98  Meigs  v.  McFarlan,  72  Mich. 
194,  40  N.  W.  246;  Lamb  v.  Jaffrey, 
47  Mich.  28,  10  N.  W.  65 ;  King  v. 
Dxinta.  11  Barb.  (N.  Y.)  191;  Van 
Bur  en  v.  Olmstead,  5  Paige  Ch.  (N. 
Y.)  9;  Harmer  v.  Priestly,  16  Beav. 
569;  Grugeon  v.  Gerrard,  4  Young 
&  C.  128. 

98  Turner  v.  Johnson,  95  Mo.  431 ; 
Davis  V.  Duffie,  18  Abb.  (N.  Y.)  Pr. 
360;  Seeley  v.  Manhattan  Co.  1 
Paige  Ch.  (N.  Y.)  81;  Brockway 
V.  Wells,  1  Paige  Ch.  (N.  Y.)  618; 
Barton  v.  May,  3  Sandf.  Ch.  (N. 
Y.)  450;  Still  v.  Bouzzell,  60  Vt. 
478 ;  Ryer  v.  Morrison,  21  R.  I.  127, 
42  Atl.  509;  Taylor  v.  Colville,  20 
App.  Div.  581,  47  (N.  Y.)  Supp. 
267.  See  Lynch  v.  Ryan,  137  Wis. 
13,  129  Am.  St.  Rep.  1040,  118  N. 
W.  174.  See  also  De  Leon  is  v. 
IValsh,  as  adm'r  etc.  140  Cal.  175, 
7i  Pac.  813. 

^Perdue  v.  Brooks,  85  Ala.  459, 
5  So.  126;  Hollingsworth  v.  Koon. 
117  111.  511.  6  X.  E.  148,  8  Id.  193. 

2  71  Me.  22>i. 


§    1243]  REDEMPTION.  1645 

perfect  and  inaccurate,  he  will  be  liable  to  costs  on  a  bill  in 
equity  to  redeem,  if  the  mortgage  is  redeemed  within  the  time 
named  in  the  decree  of  the  court. 

The  court  of  chancery  of  New  Jersey,  in  the  case  of  For- 
man  v.  Bulson,^  say  the  fact  that  the  evidence  to  prove  de- 
feasable  a  deed  absolute  on  its  face  is  very  conflicting,  and 
that  the  conclusion  that  it  was  merely  a  mortgage  was  reached 
only  by  the  preponderance  of  the  evidence,  is  a  good  reason 
for  adhering  to  the  general  rule  that  the  mortgagee  is  entitled 
to  his  costs  on  a  bill  to  redeem. 

•30  N.J.  Eq.  (3  Stew.)  493. 


CHAPTER  XLVI. 

REDEMPTION-BAR  OF  RIGHT  OF, 

§  1244.  By   foreclosure. 

§  1245.  By  judgment. 

§  1246.  By  estoppel. 

§  1247.  By  lapse  of  time. 

§  1248.  By   laches. 

§  1249.  By  Statute  of  limitations. 

§  1250.  Same — When  statute  begins  to  run. 

§  1251.  Same — Disability. 

§  1252.  By  adverse  possession. 

§  1253.  By  purchase  by  mortgagee. 

§  1254.  Tender  does  not  revive. 

§  1255.  Waiver. 

§  1256.  Same — By  acknowledgment. 

§  1244.  By  foreclosure. — We  have  already  seen*  that 
the  right  of  redemption  of  mortgaged  property  may  be  ef- 
fectually extinguished  and  barred  by  a  valid  foreclosure,  to 
which  all  the  persons  having  or  claiming  to  have  an  interest  in 
the  mortgaged  premises  have  been  made  parties ;  we  have  also 
seen  ^  that  persons  in  interest  who  are  not  made  parties  to  the 
foreclosure  proceedings  are  not  affected  thereby,  and  for  that 
reason  are  entitled  to  redeem  therefrom.®    Thus  the  supreme 

4  See  ante,  §  1055.  Assoc.  61  Iowa,  464,  16  N.  W.  527 

5  See  ante,  §  1111.  Wright  v.    Howell,   35    Iowa,   290 

6  Wiley  V.  Ewing,  47  Ala.  418 ;  Gower  v.  Winchester,  33  Iowa  301 
Hodgen  v.  Guttery,  58  111.  431;  Anson  v.  Anson,  20  Iowa,  55,  89 
Strang  v.  Allen,  AA  111.  428;  Smith  Am.  Dec.  514;  Johnson  v.  Harman, 
V.  Sinclair,  10  111.  108;  Nesbit  v.  19  Iowa,  56;  Bates  v.  Ruddick,  2 
Hanway,  87  Ind.  400;  Murdoch  v.  Iowa,  423,  65  Am.  Dec.  774;  Miner 
Ford,  17  Ind.  52;  Bunce  v.  West,  v.  Beekman,  50  N.  Y.  337;  Sell- 
62  Iowa,  80,  17  N.  W.  179;  Ayers  wood  v.  Gray,  11  Oreg.  534,  5  Pac. 
V.  Adair  County,  61  Iowa,  728,  17  196;  Pratt  v.  Frear,  13  Wis.  462; 
N.  W.  161;  American  Buttonhole,  Murphy  v.  Farwell,  9  Wis.  102,  2 
etc.    Co.   V.   Burlington   Mut.   Loan  Wis.  533. 

1646 


§    1246]  REDEMPTION.  1647 

court  of  Ohio,  in  the  case  of  Endel  v.  Leibrock,'  say  that  to 
bar  the  equity  of  redemption  of  a  non-resident  mortgagor, 
upon  whom  service  of  summons  cannot  be  personally  made, 
must  be  constructively  served  as  required  by  the  Code,'  and 
a  judgment  of  foreclosure  sale  without  such  notice  will  not 
be  a  bar  to  an  action  to  redeem. 

§  1245.  By  judgment. — A  bill  to  foreclose  may  be 
barred  by  a  judgment  of  dismissal  of  a  former  suit  for  the 
same  purpose,  in  those  cases  where  the  merits  were  inquired 
into  on  the  former  trial;  but  where  the  merits  were  not  thus 
inquired  into  on  the  former  trial  the  defendants  cannot  set  up 
the  former  record  as  a  bar  to  a  subsequent  action.^  Wliere  a 
bill  to  redeem  has  been  dismissed  on  the  merits,  but  without 
any  direction  that  the  dismissal  shall  be  without  prejudice,  it 
may  be  pleaded  in  bar  to  a  new  bill  for  the  same  purpose ;  ^^ 
but  in  those  cases  where  a  dismissal  is  qualified,  it  is  not  re- 
garded as  an  adjudication  on  the  merits  of  the  subjects  of  the 
controversy,  and  is  not  a  bar  to  the  bringing  of  a  second  bill 
to  redeem  between  the  same  parties. ^^ 

§  1246.  By  estoppel. — We  have  already  seen  ^^  that  the 
mortgagor  and  those  claiming  under  him,  may  be  estopped 

'  33  Ohio  St.  254.  ?rn   R.    Co.    63    Mass.    (9    Cush.) 

8  Ohio  Code,  %  72.  5 ;  Gove  v.  Lyford,  44  N.  H.  525 ; 

^  Bostwick  V.  Abbott,  16  Abb.  (N.  Mills  v.  Mills,  18  N.  J.  Eq.    (3  C. 

Y.)   Pr.  419,  40  Barb.  (N.  Y.)  2,2,Z;  E.  Gr.)  444;  Durrant  v.  Essc.v  Co. 

Holmes  v.  Remscn,  7  John.  Ch.  (N.  74  U.  S.    (7  Wall.)    107,   19  L.  ed. 

Y.)    286;  Ferine  v.  Dunn,  4  John.  154;    Hughes  v.    United   States,   71 

Ch.   (N.  Y.)    140.  U.  S.  (4  Wall.)  232,  18  L.  ed.  303; 

^0  Ferine   v.    Dunn,   4   John.    Ch.  IValden  v.  Bodley,    39    U.    S.     (14 

(N.  Y.)    140;  Badger  v.  Badger,  1  Pet.)   156,  10  L.  ed.  398;  Stevens  v. 

Cliff.  C.  C.  246.  Gtippy,    3    Russ.    171 ;    Lindsay    v. 

^^  Ferine    v.    Dunn,   4   John.    Ch.  Lynch,  2  Sch.  &  L.   1,  9  Rev.  Rep. 

(N.  Y.)    140;  Burton  v.  Burton,  58  54;   Woolam  v.  Hearn,  7  Ves.  211, 

Vt.  420,  5  Atl.  281.     See  Foote  v.  6    Rev.    Rep.    113;    Townshcnd    v. 

Gibbs.    67    Mass.     (1    Gray.)    412;  5'/an(7roo;»,  6  Ves.  328,  5  Rev.  Rep. 

Bigelow     v.     Windsor,     67     Mass.  312. 
(1    Gray.)     301;    Scwall    v.    East-  12  See  ante.  %   1061. 


1648 


MORTGAGE    FORECLOSURES. 


[§  1247 


by  their  own  acts  from  exercising  the  right  of  redemption 
from  a  person  who  has  purchased  the  land  at  foreclosure  sale.^^ 
Thus  it  has  been  said  that  a  subsequent  mortgagee  will  be 
estopped  to  redeem  the  premises,  as  against  a  prior  mortgagee's 
assignee,  where  such  subsequent  mortgagee  was  instrumental 
in  inducing  the  purchasing,  by  an  assurance  that  he  would 
never  redeem  the  mortgaged  premises ;  ^^  and  we  have  hereto- 
fore seen  that  a  party  may  be  estopped  by  merely  standing  idly 
by  and  not  disclosing  his  titles  or  rights  when  he  should 
speak ;  "  because  in  equity  when  a  man  fails  to  speak  when  he 
should,  and  others  upon  the  strength  of  his  silence  have  ac- 
quired rights,  will  be  restrained  from  speaking  when  he 
would." 

§  1247.  By  lapse  of  time. — It  is  well  established  that 
lapse  of  time  may  be  a  bar  to  the  right  to  redeem  from  fore- 


is  Fay  V.  Valentine,  29  Mass.  (12 
Pick.)  40,  22  Am.  Dec.  397;  Foster 
V.  Briggs,  3  Mass.  313;  Parkhtirst 
V.  Van  Cortland,  14  John.  (X.  Y.) 
15,  7  Am.  Dec.  427,  1  John  Ch.  (X. 
Y.)  274;  Niven  v.  Belknap,  2  John 
273;  Wright  v.  Whitehead,  14  Vt. 
268;  Beckett  v.  Cordley.  1  Bro.  C. 
C.  357;  Northern  Counties  of  Eng- 
land Fire  Ins.  Co.  v.  Whipp  (1884), 
26  Ch.  Div.  482,  488,  53  L.  J.  Ch. 
629;  Taylor  v.  Russell  (1891),  1 
Ch.  8,  60  L.  J.  Ch.  1;  Manning  v. 
Ferrers,  1  Eq.  Cas.  Abbr.  357 ; 
Canton  V.  Canton,  L.  R.  1  Ch.  143, 
147,  L.  R.  2  H.  L.  127;  Savage  v. 
Foster,  9  Mod.  35;  Mocatta  v. 
Murgatroyd,  1  Pr.  Wms.  494;  Haw- 
kins V.  Homes,  1  Pr.  Wms.  70; 
Peter  v.  Russell,  2  Vern.  726;  Raw 
V.  Pole,  2  Vern.  239;  Hunsden  v. 
Cheyney,  2  Vern.  148,  150;  Hobbs 
V.  Norton,  1  Vern.  136;  Evans  v. 
Bicknell,   6   Ves.    174,    190.    5    Rev. 


Rep.  245 ;  Welford  v.  Beesely,  1 
Ves.  Sr.  6,  1  Fonbl.  Eq.  161. 

'^^Fay  V.  Valentine,  29  Mass.  (12 
Pick.)  40.  22  Am.  Dec.  397. 

"^^  Ante,  §  1061.  See  Fay  v.  Valen- 
tine, 29  Mass.  (12  Pick.)  40,  22  Am. 
Dec.  397;  Foster  v.  Briggs,  3  Mass. 
313;  Parkhurst  v.  Van  Cortland,  14 
John.  (X.  Y.)  15,  7  Am.  Dec.  427, 
1  John.  Ch.  (N.  Y.)  274;  Niven  v. 
Belknap.  2  John.  (N.  Y.)  273; 
Beckett  V.  Cordley,  1  Bro.  C.  C. 
357;  Hanning  v.  Ferrers,  1  Eq.  Cas. 
Abbr.  357;  Savage  v.  Foster,  9  Mod. 
35 ;  Mocatta  v.  Murgatroyd,  1  Pr. 
Wms.  494;  Raw  v.  Pote,  2  Vern. 
239 ;  Hunsden  v.  Cheyney,  2  Vern. 
148,  150;  Hobbs  v.  Norton,  1  Vern. 
136 ;  Evans  v.  Bicknell,  6  Ves.  174, 
190,  5  Rev.  Rep.  245;  Wellford  v. 
Beesely,  1  Ves.  Sr.  6,  1  Fonbl.  Eq. 
161. 

^^  Niven  v.  Belknap,  2  John.  (X. 
Y.)  589;  Wright  v.  Whitehead,  14 
Vt.  268. 


1247] 


REDEMPTION. 


1649 


closure ;  ^'  the  statute  of  limitations  ^^  being  applied  by  analogy. 
The  time  required  to  bar  a  right  of  redemption  is.  in  the  ab- 
sence of  any  statutory  provision,  the  common  law  period  of 
twenty  years ;  ^^  but  the  act  of  the  mortgagee,  or  those  claiming 


^''^  See  Flack  v.  Bvainan,  101  S. 
W.  537  (Tex.  Civ.  App.) 

1' See  Lindberg  v.  Thomas,  137 
Iowa.  48,  114  N.  W.  562;  Tuteur  v. 
Brozi'u,  74  Miss.  774,  21  So.  748; 
Gray  v.  Williams,  130  N.  C.  53.  40 
S.  E.  843 ;  Houston  v.  National 
Mutual  Building  &  Loan  Ass'c.  80 
Miss.  31,  92  Am.  St.  Rep.  565,  31 
So.  540.    See  post,  §  1148. 

In  North  Dakota,  the  statutory 
period  is  ten  years.  Nasli  v.  North- 
west Land  Co.  15  N.  D.  566,  108 
N.  W.  792. 

/;;  South  Dakota,  the  statutory 
period  is  ten  years.  Houts  v.  Olson, 
14  S.  D.  475,  85  N.  W.  1015. 

19  See  Coyles  v.  Wilkins,  57  Ala. 
108;  Byrd  v.  McDaniel.  33  Ala.  18; 
McArthur  v.  Carrie's  Adm'r  32 
Ala.  75,  70  Am.  Dec.  529;  Gunn  v. 
Brantley,  21  Ala.  633,  644;  Maury 
V.  Mason.  8  Port.  (Ala.)  211; 
Guthrie  v.  Field.  21  Ark.  379; 
Taylor  v.  McClain,  60  Cal.  651.  64 
Id.  513;  Arrington  v.  Liscom.  34 
Cal.  366,  94  Am.  Dec.  722;  Grattau 
V  Wiggins.  23  Cal.  16;  Jarvis  v. 
Woodruff.  22  Conn.  548;  Buncc  v. 
Wolcott,  2  Conn.  27 ;  Davidson  v. 
Lawrence.  49  Ga.  335 ;  Morgan  v. 
Morgan.  10  Ga.  297;  Goodell  v. 
Dezvey.  100  III.  308;  Locke  v.  Cald- 
well. 91  111.  419;  Hallesy  v.  Jackson. 
66  111.  139;  Lindsey  v.  Delano.  78 
Iowa.  350,  43  N.  W.  218;  Craw- 
ford V.  Taylor.  42  Iowa,  260; 
Montgomery  v.  Chadivick,  7  Iowa, 
114;  McPherson  v.  Hayward.  81 
Me.  329,  17  Atl.  164;  Randall 
Mortg,  Vol.  II.— 104. 


V  Bradley,  65  Me.  43 ;  Roberst  v. 
Little  field,  48  Me.  61;  Blethen  v. 
Dwinal,  35  Me.  556;  Crook  v.  Glenn, 
30  Md.  55,  70:  //^r//e  v.  McDonald. 
2  Md.  Ch.  128,  3  Md.  366;  i-^^zr«jr 
V.  Dedham  Savings  Inst.  129  Mass. 
547;  /i3;rr.s  v.  Waite,  64  Mass.  (10 
Cush.)  72;  Hoffman  v.  Harrington. 
33  Mich.  392 ;  Reynolds  v.  Green- 
ing, 10  Mich.  355 ;  Coo^  v.  Finkler, 
9  Mich.  131;  Anding  v.  Davis,  33 
Miss.  574;  Ca/)^  Girardeau  Com- 
pany V.  Harbison,  56  Mo.  96;  Ford 
V.  rFf/.ro;/,  35  Miss.  490,  72  Am. 
Dec.  137;  McNair  v.  Lot,  34  Mo. 
285,  84  Am.  Dec.  78;  Tripp  v. 
Marcy,  39  N.  H.  439;  Chapin  v. 
f'J>^n>/h',  41  N.  J.  Eq.  (14  Stew.) 
438,  5  Atl.  574;  Miner  v.  Beek- 
man,  50  N.  Y.  337,  14  Abb.  (N. 
Y.)  Pr.  N.  S.  1;  Demarest  v.  Wyn- 
koop.  3  John.  Ch.  (N.  Y.)  129,  135, 
8  Am.  Dec.  467;  Moore  v.  Cable,  1 
John.  Ch.  (N.  Y.)  385;  Bailey  v. 
Car^fr,  7  Ired.  (N.  C.)  Eq.  282; 
Martin  v.  Jackson,  27  Pa.  St.  504, 
67  Am.  Dec.  489;  Wood  v.  Jones, 
1  Meigs.  (Tenn.)  513;  Yarborougli 
V.  Newell,  10  Yerg.  (Tenn.)  376; 
Hammond  v.  Hopkins,  3  Yerg. 
(Tenn.)  529;  7?o.yj'  v.  Norvell.  1 
Wash.  (Va.)  14,  1  Am.  Dec.  422; 
Knowlton  v.  Walker,  13  Wis.  264 ; 
Brobst  V.  5;-oci^,  77  U.  S.  (10 
Wall. )  152 ;  sub  nom  Doe  ex  d. 
Brobst  V.  Roe.  19  L.  ed.  1002; 
Sliccr  V.  Pittsburg.  57  U.  S.  (16 
How.)  571,  14  L.  ed.  1063;  Ehnen- 
dorf  V.  Taylor.  23  U.  S.  (10 
Wheat.)    152,  6  L.  ed.  289;  Hughes 


1650 


MORTGAGE    FORECLOSURES. 


[§  1247 


under  him,  must  be  unequivocal.    He  must  not  enter  as  the  ten- 
ant of  the  mortgagor,  and  if  he  does  that  relation  will  be  pre- 


V.  Edwards,  22  U.  S.  (9  Wheat.) 
489,  6  L.  ed.  142;  Fox  v.  Blossom, 
17  Blatchf.  C.  C.  352;  Amory  v. 
Lawrence,  3  Cliff.  C.  C.  523 ; 
Dexter  v.  Arnold,  1  Sumn.  C.  C. 
117;  Doe  v.  DeVeber,  3  Allen  (N. 
B.)  23;  Anonymous,  3  Atk.  313; 
Blake  V.  Foster,  2  Ball.  &  B.  402; 
Cholmondeley  v.  Clinton,  2  Jack  & 
W.  187 ;  Chapman  v.  Corpse,  41  L. 
T.  N.  S.  22;  Barron  v.  Martin,  19 
Ves.  327 ;  Nichols  v.  Tingstad,  10 
N.  D.  172,  86  N.  W.  694;  Becker 
V.  McCrea,  193  N.  Y.  423.  23  L.R.A. 
(N.S.)  754.  86  N.  E.  463;  Munro 
V.  Barton,  98  Me.  250,  56  Atl.  844. 

In  Indiana  the  period  of  limi- 
tations is  fifteen  years.  Ttirpie  v. 
Lowe,  158  Ind.  314,  92  Am.  St. 
Rep.  310,  62  N.  E.  484;  Sinclair  v. 
Gunsenhauser,  98  N.  E.  37   (Ind.) 

In  Iowa  the  statutory  period  is 
ten  years.  Adams  v.  Holden,  111 
Iowa,  54,  82  N.  W.  468. 

In  Nebraska,  an  action  to  re- 
deem is  not  barred  until  ten  years 
after  the  mortgagee  enters  into 
possession.  Clark  v.  Hannafeldt,  79 
Neb.  566,  113  N.  W.  135. 

In  Washington,  the  mortgagor's 
right  to  redeem  is  barred  after 
seven  year's  possession  by  the  pur- 
chaser. Johnson  v.  Bartlett,  50 
Wash.  114,  96  Pac.  833. 

Actual  possession  for  twenty 
years  by  mortgagee,  or  adverse  pos- 
session by  a  stranger  to  the  mort- 
gage, without  account  or  acknowl- 
edgement of  any  subsisting  mort- 
gage, bars  the  equity  of  redemption 
of  the  mortgagor  by  operation  of 
the  statute  of  limitations.     McNair 


V.   Lot,  34  Mo.   285,   84  Am.   Dec. 
78. 

Under  New  Jersey  Rev.  Stat., 
§  597,  twenty  years'  possession  of 
premises  by  the  mortgagee,  after 
default  of  payment,  bars  the  equity 
of  redemption ;  and  such  bar  is  not 
subject  to  be  waived  by  an  in- 
cautious admission  of  the  mort- 
gagee. Chapin  v.  Wright,  41  N.  J. 
Eq.  (13  Stew.)  438,  5  Atl.  574. 

After  a  lapse  of  sixteen  years 
from  the  time  of  a  sale  under  a  bar, 
known  to  the  mortgagor  or  his 
heirs,  who  has  remained  all  this 
time  passive  cannot  redeem,  say 
the  court  in  the  case  of  Bergen  v. 
Bennett,  1  Cal.  Cas.  (N.  Y.)  1,  2 
Am.  Dec.  281.  See  Watson  v. 
Mulford,  21  N.  J.  L.  (1  Zab.)  507; 
Ten  Eyck  v.  Craig,  62  N.  Y.  419. 

Four  years  elapsing  from  the 
time  when  the  right  of  action  ac- 
crues on  the  mortgage  debt  is  suf- 
ficient to  bar  the  right  of  the  mort- 
gagor to  maintain  an  action  to  re- 
deem the  property  from  the  mort- 
gage lien  under  the  California  stat- 
ute. Cunningham  V.  Hawkins,  24 
Cal.  413,  85  Am.  Dec.  73.  See  Ar- 
rington  v.  Liscom,  34  Cal.  369,  94 
Am.  Dec.  722 ;  Millard  v.  Hathaway, 
27  Cal.  146. 

In  the  case  of  Stevens  v.  Dedham 
Sav.  Inst.  129  Mass.  547,  the  holder 
of  a  mortgage  of  land  assigned  it 
as  security  for  his  own  promissory 
note.  After  a  breach  of  the  con- 
dition of  the  mortgage  and  of  the 
assignment,  the  assignee  brought  an 
action  to  foreclose,  obtained  a  con- 
ditional judgment  for  the  amount 
due  from  the  assignor,  and  on  an 


§  1248] 


REDEMPTION. 


1651 


sumed  to  continue  until  the  presumption  is  rebutted.^"  No 
lapse  of  time  will  serve  to  bar  the  right  of  redemption  in  those 
cases  where  the  mortgage  has  been  treated  by  the  parties  as  a 
subsisting  lien,  and  a  security  for  the  debt  only ;  ^^  should  the 
mortgagee  lake  possession,  however,  and  retain  the  same  with- 
out accounting  for  the  rents  and  profits  for  the  space  of  twenty 
years,  the  equity  of  redemption  will  be  presumed  to  be  extin- 
guished, or  abandoned  by  the  mortgagor ;  and  a  bill  to  redeem 
will  not  be  entertained  by  a  court  of  equity.'^^ 

§  1248.  By  laches. — The  right  of  a  party  to  redeem  from 
a  mortgage  foreclosure  sale  under  advertisement,  or  otherwise, 
may  be  defeated  by  laches. ^^    Thus,  where  a  person  bringing 


execution  obtained  seisin  and  pos- 
session of  the  land.  After  retain- 
ing possession  for  three  years  he 
sold  the  land.  The  court  held  that 
a  bill  by  the  assignor  to  redeem, 
brought  within  twenty  years  from 
such  sale,  but  more  than  twenty 
years  after  possession  was  obtained, 
could  not  be  maintained. 

In  the  case  of  Goodell  v.  Dewey, 
100  111.  308,  a  mortgagor  and  his 
wife  conveyed  the  mortgaged  prem- 
ises absolutely  to  the  mortgagee  in 
full  satisfaction  of  the  indebted- 
ness. The  mortgagee  to  cut  off 
certain  intervening  liens,  sold  under 
the  power,  immediately  taking  back 
a  conveyance  from  the  ostensible 
purchaser  at  the  sale.  The  mort- 
gagee surrendered  notes  and  mort- 
gage, and  held  possession  for  three 
years,  the  premises  being  worth  but 
little  more  than  the  amount  of  the 
mortgage.  During  this  time  the 
mortgagor  made  no  objection,  and 
there  was  no  evidence  of  fraud  or 
overreaching.  The  court  held  that 
the  mortgagor  could  not  maintain  a 
suit  to  redeem. 


^^  Aycrs  V.  Waite,  64  Mass.  (10 
Cush.)  72;  Shields  v.  Lozear,  34  N. 
J.  L.  (5  Vr.)  496,  3  Am.  Rep.  256; 
Anderson  v.  Lanterman,  27  Ohio  St. 
104;  Steadman  v.  Gassett,  18  Vt. 
346;  Edwards  v.  Wray,  12  Fed.  42; 
Landers  v.  Sanders,  L.  R.  19  Ch. 
Div.  Z72>,  44  L.  T.  N.  S.  171 ;  Clowes 
V.  Hughes,  L.  R.  5  Exch.  160;  Ord 
V.  Heming,  1  Vern.  418. 

21  Dexter  v.  Arnold,  1  Sumn.  C. 
C.  117. 

^^  Dexter  v.  Arnold,  1  Sumn.  C. 
C.   117. 

23  Bancroft  v.  Swain,  143  Mass. 
144,  9  N.  E.  539:  Emmons  v. 
Van  Zee,  78  Mich.  171,  43  N.  W. 
1100;  Hall  v.  Westcott,  17  R.  I.  504, 
23  Atl.  25;  Francis  v.  Parks, 
55  Vt.  80;  Gray  as  adm'r  etc.  v. 
Hayhurst,  157  111.  App.  488;  Baird 
V.  Baird,  48  Colo.  506,  111  Pac.  79; 
Mason  v.  Stevens,  91  111.  App.  623. 
See  MacGregor  v.  Pierce,  17  S.  D. 
51,  95  N.  W.  281.  See  also  Snipes 
V.  Kcllelicr  as  adm'r  etc.  31  \Va.sh. 
386,  72  Pac.  67;  Dispcaii  v. 
First  National  Bank,  24  R.  I.  508, 
53  Atl.  868;  Baker    v.    Bailey.   204 


1652 


MORTGAGE    FORECLOSURES. 


[§   1^49 


a  bill  to  redeem  delays  to  prosecute  the  same  for  a  period  of 
more  than  two  years  after  its  commencement,  he  will  be  de- 
barred by  such  delay  from  the  right  to  redeem ;  ^*  and  it  has 
been  said  that  one  who,  through  his  own  carelessness,  fails  to 
know  when  he  must  redeem,  is  not  entitled  to  relief  in  equity.^^ 
But  it  has  been  said  that  a  suit  by  a  mortgagee  to  enforce 
his  right  to  redeem  the  land  in  possession  of  another  mort- 
gagee, who  has  purchased  it  at  a  tax  sale,  is  not  to  be  defeated 
on  the  ground  of  laches,  where  the  defendant  had  been  in 
possession  but  six  and  a  half  years  when  the  suit  was  begun;  ^^ 
and  where  a  sale  under  a  power  in  a  trust  deed  was  of  a 
character  wholly  unauthorized,  and  merely  amounted  to  a  pri- 
vate sale,  though  public  in  form,  the  doctrine  of  laches  has  no 
application  to  the  right  to  redeem.^' 

§  1249.  By  statute  of  limitations. — Uninterrupted  pos- 
session by  the  mortgagee,  or  those  claiming  under  him,  with- 
out any  account  or  acknowledgment  of  the  mortgage  for  more 
than  twenty  years,  except  where  the  mortgagor,  or  those  in 
privity  to  him,  is  under  a  disability ,^^  bars  the  equity  of  re- 
demption.^^   The  supreme  court  of  Ohio,  in  the  case  of  Clark 


Pa.  524,  54  Atl.  326 ;  Chace  v.  Morse 
as  adm'r  etc.  189  Mass.  559,  76  N. 
E.  142;  Teirault  v.  Fotirnier,  187 
Mass.  58,  72  N.  E.  351;  Broaddiis 
Heirs  v.  Potts.  140  Ky.  583,  131  S. 
W.  510;  Cooney  v.  Coppock,  119 
Iowa  486,  93  N.  W.  495 ;  Adams  v. 
Holden,  111  Iowa,  54,  82  N.  W.  468; 
Sinclair  v.  Gunsenhauser,  98  N.  E. 
27  (Ind.)  ;  Mann  v.  Jobusch.  70  111. 
App.  440;  Deadman  v.  Yantis.  230 
III.  243,  120  Am.  St.  Rep.  291,  82 
N.  E.  592 ;  Walker  v.  Warner,  179 
111.  16,  70  Am.  St.  Rep.  85,  53  N.  E. 
594;  Eastman  v.  Little  field,  164 
III.  142,  45  N.  E.  137;  Elrod  v. 
Smith,  130  Ala.  212,  30  So.  420. 
In    Mississippi    the    doctrine    of 


laches  is  not  recognized.  Houston 
V.  National  Mutual  Building  & 
Loan  Ass'c.  80  Miss.  31,  92  Am.  St. 
Rep.  565,  31  So.  540.  See  Cox  v. 
American  Freehold  &  Land  Mort- 
gage Co.  88  Miss.  88,  40  So.  739. 

2*  Bancroft  v.  Swain,  143  Mass. 
144,  9  N.  E.  539. 

^^  Francis  v.  Parks,  55  Vt.  80. 
See  Fitch  v.  Miller,  200  111.  170.  65 
N.   E.  650. 

26 //a//  V.  Westcott.  17  R.  I.  504, 
23   Atl.  25. 

27  Williamson  v.  Stone.  27  111. 
App.  214,  aff'd  128  111.  129.  22  N. 
E.  1005. 

28  See  post.  §  1251. 

29  Demarest  v.   Wynkoop,  3  John. 


§   1250] 


REDEMPTION. 


1655 


V.  Potter,^"  say  that  where  the  mortgaged  premises  are  an  en- 
tire tract,  as  a  farm,  part  of  which  only  is  improved,  with  a 
tenement  thereon,  and  the  possession  to  the  whole  is  so  far 
adverse  as  to  create  a  cause  of  action  in  favor  of  the  mort- 
gagor, and  cause  time  to  commence  running  against  the  right 
to  redeem,  the  temporary  interruption  of  actual  residence  on 
the  land,  caused  by  the  unlawful  and  violent  acts  of  strangers 
in  tearing  down  the  house  and  rendering  the  premises  unten- 
antable for  the  time  being,  will  not  prevent  the  statute  from 
continuing  to  run  where  there  is  no  adverse  entry  or  offer  to 
redeem,  and  the  mortgagee  does  not  abandon  his  possession 
and  control,  but  continues  to  exercise  all  acts  of  ownership 
and  dominion  ^^  over  the  premises  of  which  the  nature  of  the 
land  and  its  condition  will  admit. 

§  1250.  Same — When  statute  begins  to  run. — The  stat- 
ute of  limitations  begins  to  run  from  the  time  when  the  mort- 
gagee, or  those  in  privity  claiming  under  him,  takes  actual, 
open  and  notorious  possession  of  the  premises.  Where  there 
is  a  foreclosure  in  due  and  legal  form,  the  statute  of  limita- 
tions will  begin  to  run  from  the  time  of  the  confirmation  of  the 
sale  under  the  judgment  or  decree ;  ^^  but  where  time  is  gWen 


Ch.  (N.  Y.)  129,  8  Am.  Dec.  467. 
See  Moore  v.  Cable,  1  John.  Ch. 
(N.  Y.)  385;  Clark  v.  Potter.  32 
Ohio  St.  49;  Aggar  v.  Rickerell,  3 
Atk.  325;  Anonymous,  3  Atk.  313 
Barron  v.  Martin,  1  Coop.  Eq.  189 
Reeks  V.  Postlewaife,  1  Coop.  Eq 
161 ;  Belch  v.  Harvey,  2  Pr.  Wins 
287n ;  Bonney  v.  Rigard,  19  Ves 
99;  Hodle  v.  Haley,  1  Ves.  &  B 
536. 

In  Alabama,  the  liir.e  is  ten 
years.  Dixon  v.  Haves.  55  So.  164 
(Ala.) 

30  32  Ohio  St.  49. 

'*  Knowlton  v.  Walker,  13  Wis. 
275.     See  Warder  v.  Enslen,  73  Cal. 


291;  Frink  v.  Le  Roy,  49  Cal.  314; 
Crazvford  v.  Taylor,  42  Iowa,  260; 
Green  v.  Turner,  38  Iowa,  118; 
Montgomery  v.  Chadwick,  7  Iowa,. 
113;  Bird  v.  Keller,  77  Me.  270; 
Anding  v.  Davis,  38  Miss.  574,  77 
Am.  Dec  658 ;  Kohlheim  v.  Harri- 
son. 34  Miss.  457;  Hubbell  v.  Sib- 
ley. 50  N.  Y.  468;  Miner  v.  Beek- 
man.  14  Abb.  (N.  Y.)  Pr.  N.  S. 
1  ;  Bailey  v.  Carter.  7  Ired.  (N.  C.) 
Eq.  282;  Waldo  v.  Rice,  14  Wis. 
276 ;  Babcock  v.  Wyman,  60  U.  S. 
(19  How.)  289,  15  L.  ed.  644. 

32  For  running  a  statute  where 
foreclosure  was  void,  see  Rigney  v. 
DeGraw,  100  Fed.  213  (Mo.) 


1654 


MORTGAGE    FORECLOSURES. 


[§   1251 


after  the  sale  in  which  to  redeem,  the  relation  of  mortgagor 
and  mortgagee  will  continue  until  the  expiration  of  such  time, 
and  the  statute  of  limitations  will  not  begin  to  run  until  after 
the  date  fixed  on  which  redemption  may  be  made.^^ 

§  1251.  Same — Disability. — In  those  cases  where  the 
defendant  is  under  any  of  the  disabilities  recognized  by 
law  at  the  time  the  statute  would  otherwise  begin  to  run, 
the  statute  of  limitations  will  not  run.  These  disabilities  are, 
among  others,  absence  from  the  state,^*  coverture,^®  infancy,^® 
insanity,^'     imprisonment,^^     public     war,^^     and     sometimes 


^^  Rockwell  V.  Servant,  63  111. 
429.  See  also  Catl'in  v.  Murray,  2)7 
Wash.  164,  79  Pac.  605;  Hunter, 
as  ex'r,  etc.  v.  Coffman,  74  Kan. 
308,  86  Pac.  451. 

34  Clinton  Co.  v.  Cox,  37  Iowa, 
570;     Waterson    v.    Kirkwood,    19 

Kan.  9;  Phillips  v.  Sinclair,  20  Me. 
269;  Whalley  v.  Eldridge,  24  Minn. 
358;  Parsons  v.  Noggle,  23  Minn. 
328 ;  Beckford  v.  Wade,  17  Ves.  87, 

11  Rev.  Rep.  20. 

35  Traders  Insurance  Co.  v.  New- 
man, 120  Ind.  554,  22  N.  E.  428; 
Barr  v.  Van  Alstine,  120  Ind.  139, 
22  N.  E.  965 ;  Eager  v.  Common- 
wealth, 4  Mass.  182;  Acker  v. 
Acker,  81  N.  Y.  143;  Demarest  v. 
Wynkoop,  3  John.  Ch.  (N.  Y.)  129, 
8  Am.  Dec.  467. 

^^  Hanford  v.  Finch,  41  Conn. 
4S3;Hertle  v.  McDonald,  2  Md.  Ch. 
128;  Anding  v.  Davis,  38  Miss.  574, 
77  Am.  Dec.  658;  Wells  v.  Morse, 
11  Vt.  9;  Snavely  v.  Pickle,  29 
Gratt.  (Va.)  39;  Fitshugh  v.  An- 
derson, 2  Hen.  &  M.  (Va.)  289,  3 
Am.  Dec.  625 ;  Parsons  v.  Mc- 
Cracken,  9  Leigh  (Va.)  495;  Belch 
V.  Harvey,  3  Pr.  Wms.  287n ;  Proc- 
tor V.  Cowper,  2  Vern.  377.  See 
Fearn  v.  Shirley,  31   Miss.  301,  66 


Am.  Dec.  575 ;  Beacon  v.  Gray,  23 
Miss.  140;  Rainey  v.  McQueen,  121 
Ala.  191.  25  So.  920.  Stt^Messinger 
V.  Foster,  115  App.  Div.  689,  101  N. 
Y.  Supp.  387  (Code  Civ.  Proc. 
§  396).  But  see  Walker  v.  Chess- 
man, 75  N.  H.  20,  70  Atl.  248. 

37  Currier  v.  Gale,  85  Mass.  (3 
Allen}  328;  Allis  v.  Moore,  84 
Mass.  (2  Allen)  306.  See  Mcs- 
singer  v.  Foster,  115  App.  Div.  689, 
101  N.  Y.  Supp.  387  (Code  Civ. 
Proc.  §  396). 

^^  Messing er  v.  Foster,  115  App. 
Div.  689,  101  N.  Y.  Supp.  387  (Code 
Civ.  Proc.  §  396). 

39  Hall  V.  Dencklay,  38  Ark.  506 ; 
Reynolds  v.  Baker,  6  Coldw. 
(Tenn.)  221;  Conrad  v.  Waples,  96 
U.  S.  279,  305,  24  L.  ed.  721.  728; 
Lassere  v.  Rochereau,  84  U.  S.  (17 
Wall.)  437,  21  L.  ed.  694;  Dean  v. 
Nelson,  77  U.  S.  (10  Wall.)  158, 
19  L.  ed.  926;  Montgomery  v. 
United  States,  28  U.  S.  (15  Wall.) 
395,  21  L.  ed.  97.  See  Wash- 
ington University  of  Missouri  v. 
Finch,  85  U.  S.  (18  Wall.)  106,  21 
L.  ed.  818;  Ludlow  v.  Ramsey,  78 
U.  S.  (11  Wall.)  581,  20  L.  ed. 
216. 

Mr.   Justice   Swain  holds   in   the 


§  1251] 


REDEMPTION. 


1655 


fraud.*"  A  party  can  only  avail  himself  of  those  disabilities 
existing  when  the  right  of  action  first  accrued,  and  for  that  rea- 
son cannot  take  advantage  of  successive  disabilities  which  are 
not  regarded  in  the  construction  of  the  statute  of  limitations.*^ 
The  general  rule  is  that  when  the  statute  has  begun  to  run  it 
will  continue  to  run  without  being  impeded  by  any  subsequent 
disability.*^     Thus  if  the  owner  of  the  equity  of  redemption 


case  of  Lassere  v.  Rochereaii,  84 
U.  S.  (17  Wall.)  437,  21  L.  ed.  694, 
that  it  is  contrary  to  the  plainest 
principles  on  reason  and  justice, 
that  any  one  should  be  condemned 
as  to  person  or  property  without  an 
opportunity  to  be  heard.  Where 
defendants  were  within  the  Con- 
federate lines  at  the  time  of  pro- 
ceedings to  foreclose  a  mortgage, 
and  it  was  unlawful  for  them  to 
cross  those  lines,  a  notice  directed 
to  them  and  published  in  a  news- 
paper was  a  mere  idle  form,  as 
to  them,  and  the  proceedings  were 
wholly  void  and  inoperative. 

^^  Demarest  v.  Wynkoop,  3  John. 
Ch.  (N.  Y.)  129,  8  Am.  Dec.  467; 
Marks  v.  Pell,  1  John  Ch.  (N.  Y.) 
594.  See  Hunt's  Heirs  v.  Ellison's 
Heirs.  32  Ala.  173 ;  George  v.  Gard- 
ner, 49  Ga.  441 ;  Wilson  v.  Robert- 
son. 21  N.  Y.  587;  Marks  v.  Pell,  1 
John.  Ch.  (X.  Y.)  594;  Reynolds 
V.  Baker,  6  Cpldw.  (Tenn.)  221; 
Guinn  V.  Locke,  1  Head.  (Tenn.) 
110;  Kinsman  v.  Rouse,  L.  R.  17 
Ch.  Div.  104. 

The  supreme  court  of  Alabama 
say,  in  the  case  of  Hunt's  Heirs 
V.  Ellison's  Heirs,  supra,  that  an 
application  to  the  chancery  court  to 
set  aside  a  decree  and  foreclosure 
on  account  of  fraud  and  irregular- 
ities, must  be  made  within  a  rea- 
sonable time,  and  that  an  applica- 
tion after  thirteen  years  had  elapsed. 


and  the  land  had  greatly  increased 
in  value,  had  passed  into  the  hands 
of  subsequent  purchasers  who  had 
erected  valuable  improvements 
thereon,  was  not  within  a  reason- 
able time. 

*i  Demarest  v.  Wynkoop,  3  John. 
Ch.  (N.  Y.)   129,  8  Am.  Dec.  467. 

*2  Currier  V.  Gale,  85  Mass.  (3 
Allen)  328;  Demarest  v.  Wynkoop, 
3  John.  Ch.  (N.  Y.)  129,  8  Am. 
Dec.  467;  Davis  v.  Indiana,  94  U. 
S.  792,  24  L.  ed.  320.  See  Keil  v. 
Healey,  84  111.  104;  Stephens  v.  Mc- 
Cormick,  5  Bush  (Ky.)  181 ;  Ruff  v. 
Bull,  7  Harr.  &  J.  (Md.)  14;  Allis 
V.  Moore,  84  Mass.  (2  Allen)  306; 
DeMill  V.  Moffatt.  49  Mich.  130; 
Bryd  v.  Bryd,  28  Miss.  144;  Pinck- 
ney  v.  Burrage,  31  N.  J.  L.  (2  Vr.) 
21;  Becker  v.  Van  Valkenburgh.  29 
Barb.  (N.  Y.)  324;  Peck  v.  Randall, 
1  John.  (N.  Y.)  165;  Seawell  v. 
Bunch,  6  Jones  (X.  C.)  L.  197; 
Reimer  v.  Stuber,  20  Pa.  St.  458, 
59  Am.  Dec.  744;  Dillard  v.  Philson, 
5  Strob.  (S.  C.)  L.  213;  Tracey  v. 
Atherton.  36  Vt.  503;  Hogan  v. 
Kurtz,  94  U.  S.  772>,  24  L.  ed.  317; 
Mercer  v.  Selden.  42  U.  S.  (1 
How.)  37.  11  L.  ed.  38;  Walden  v. 
Gratz,  14  U.  S.  (1  Wheat.)  292,  4 
L.  ed.  94;  Lewis  v.  Barksdale,  2 
Brock.  C.  C.  436;  Rhodes  v. 
Smcthurst,  4  Mees.  &  W.  42.  6  Id. 
351;  Cotterell  v.  Dutton,  4  Taunt. 
826. 


1656  MORTGAGE    FORECLOSURES.  [§    1252 

becomes  insane  or  falls  under  any  other  of  the  disabilities  be- 
fore mentioned,  with  the  possible  exception  of  public  war,  after 
the  statute  begins  to  run.  such  disability  will  not  prevent  a 
bar.*^  The  reason  for  this  is  that  the  rule  is  intended  to  save 
the  rights  of  the  party  until  all  the  disabilities,  existing  at  the 
time  the  right  accrues,  are  removed.  Further  than  this  it  has 
never  been  extended. ^^  When  the  statute  of  limitations  begins 
to  run  it  continues  to  run  and  overrides  all  disabilities  subse- 
quently arising.*^ 


§  1252.  By  adverse  possession. — Adverse  possession  of 
the  mortgaged  premises  may  bar  the  equity  of  redemption." 
Thus  actual  possession  for  the  period  required  by  the  statute 
of  limitations  by  the  mortgagee,  or  adverse  possession  by  a 
stranger  to  the  mortgage,  without  accounting,  or  acknowledg- 
ment of  any  subsisting  mortgage,  bars  the  equity  of  redemption 
of  the  mortgagor  by  operation  of  the  statute  of  limitations.*"' 
Thus  where  a  mortgagor  allows  the  mortgagee  or  those  claim- 

^^  Currier   v.    Gale,   85    Mass.    (3  Jac.  &  W.  187.     See  Becker  v.  Mc- 

Allen)     328;    Allis    v.    Moore,    84  Crea,    193    N.    Y.    423,    23    L.R.A. 

Mass.    (2  Allen)   306.  (N.S.)   754,  86  N.  E.  463. 

^^Demarest  v.  IVyiikoop,  3  John.  '^^  McNair  v.  Lot,  34  Mo.  285,  84 
Ch.  (N.  Y.)  129,  8  Am.  Dec.  467;  Am.  Dec.  78.  See  Parker  v.  Pre- 
McFarland  v.  Stone,  17  Vt.  175,  44  witt,  64  Ala.  555 ;  Goodman  v.  Win- 
Am.  Dec.  328.  tcr,  64  Ala.  431,  38  Am.  Rep.   13; 

^^Denn  v.  Richards,  15  N.  J.  L.  Barksdale  v.   Garrett,  64  Ala.  281. 

(3    J.    S.    Gr.)    347;    Demarest    v.  2%  Am.  Rep.  6;  McCoy  \.  Morrow, 

Wynkoop,  3  John.  Ch.  (N.  Y.)  129,  18  111.  519,  68  Am.  Dec.  578;  Stump 

8  Am.  Dec.  467;  Harris  v.  McGov-  v.  Henry,  6  Md.  201,  61  Am.  Dec. 

em.  2   Sawy.    C.   C.   513;   Demi   v.  300;  Ford  v.  Wilson,  35  Miss.  40,72 

Moore,  3  Wall.  Jr.  C.  C.  292;  Doe  .Am.  Dec.  137;  Cape  Girardeau  Co. 

ex.   d.   Duroure   v.   Jones,  4  Dunf.  v.  Harbison,  58  Mo.  90,  96;  Martin 

&   E.    (4  T.   R.)    300,  2  Rev.   Rep.  v.  Jackson,  27  Pa.  St.  504,  67  Am. 

390;  Fleming  V.  Griswold,  3  }i'\\],S5.  Dec.  489;  Dixon  v.  Hayes,  55  So. 

^McNair  v.  Lot,  34  Mo.  285,  84  164    (Ala.)      See    Garrett   v.   Ellis. 

Am.    Dec.    78;    Demarest   v.    Wyn-  52  So.  451   (Miss.) 
koop,  3  John.  Ch.  (N.  Y.)  129,  135,  Possession  by  the  mortgagee  for 

8  Am.  Dec.  467;  Elmendorf  v.  Tay-  the  time  designated  in  the  statute 

lor,  23  U.  S.  (10  Wheat.)   152,  6  L.  of  limitations  of  a  particular  state, 

ed.  289:  Cholmondeley  v.  Clinton,  2  and  a  refusal  on  his  part  to  recog- 


§  1252] 


REDEMPTION. 


1657 


ing  under  him  to  hold  possession  of  the  mortgaged  premises 
for  twenty  years  or  more  without  accounting  and  are  without 
admitting  that  the  possession  is  that  of  a  mortgaged  title 
only,  bars  the  equity  of  redemption,  and  the  title  of  the  mort- 
gagee or  parties  in  privy  becomes  absolute  in  equity,  as  in 
law." 

In  New  York,   under  the  Code  of   Civil   Procedure,*^  an 
action  to  redeem  real  property  from  a  mortgage,  with  or  with- 


nize  the  mortgage  or  any  equitable 
claim  of  the  mortgagor,  where  the 
mortgagor  is  under  no  disability, 
will  have  the  effect  to  bar  the 
equity  of  redemption  of  the  mort- 
gagor. Davidson  v.  Lawrence.  49 
Ga.  340;  Locke  v.  Caldwell,  91  111. 
419;  Howland  v.  Shurtleff.  43  Mass. 
(2  Met.)  26,  35  Am.  Dec.  384;  Cape 
Girardeau  v.  Harbison.  58  Mo.  90, 
96;  McNair  v.  Lett,  34  Mo.  285, 
84  Am.  Dec.  78;  Chapin  v.  Wright, 
41  N.  J.  Eq.  (14  Stew.)  438. 
5  Atl.  574;  Calkins  v.  Calkins, 
30  Barb.  (N.  Y.)  307;  De- 
marest  v.  VVynkoop.  3  John.  Ch. 
(N.  Y.)  129,  135,  8  Am.  Dec.  467; 
Moore  v.  Cable,  1  John.  Ch.  (N. 
Y.)  385;  Slee  v.  Manhattan  Co.  1 
Paige  Ch.  (N.  Y.)  48;  Ross  v. 
Nerval,  1  Wash.  (Va.)  17,  1  Am. 
Dec.  422;  Elmendorf  v.  Taylor,  23 
U.  S.  (10  Wheat.)  152,  170.  6  L. 
ed.  295 ;  Hughes  v.  Edwards,  22 
U.  S.  (9  Wheat.)  489,  6  L.  ed.  142; 
Dexter  v.  Arnold,  1  Sumn.  C.  C. 
109;  Blake  v.  Foster,  2  Ball  &  B. 
402,  457;  Barron  v.  Martin,  19  Ves. 
327,  3  Bro.  Ch.  243. 

The  question  of  adverse  posses- 
sion depends  on  the  intention  of  the 
possessor  and  the  knowledge  or 
means  thereof  on  the  part  of  the 
owner  of  the  equity  of  redemption, 
and  is  always  a  question  of  fact  to 


be  determined  by  the  jury.  Ford 
V.  Wilson,  35  Miss.  490,  72  Am. 
Dec.  137. 

^^  Dawson  v.  Hoyle,  58  Ala.  44; 
Clark  V.  Cluff,  65  N.  H.  43;  Clark 
V.  Potter,  32  Ohio  St.  42.  See  also 
Becker  v.  McCrea,  193  N.  Y.  423, 
23  L.R.A.(N.S.)  754,  86  N.  E.  463. 

If  a  mortgagee,  with  knowledge 
and  acquiescence  of  the  mortgagor, 
takes  actual,  open,  and  notorious 
possession  of  the  mortgaged  prem- 
ises, and  holds  and  controls  the 
same,  adversely  to  the  rights  of  the 
mortgagor  to  redeem,  for  twenty- 
one  years,  under  color  of  title  de- 
rived from  the  mortgage,  and  from 
a  decree  of  foreclosure  and  sale  of 
the  same  to  him,  the  equity  of  re- 
demption is  barred,  although  the  de- 
cree foreclosing  the  mortgage  was 
null  and  void.  Clark  v.  Potter.  32 
Ohio  St.  49. 

Where  the  possession  of  a  mort- 
gagee and  one  to  whom  he  conveyed 
absolutely  has  continued  for  more 
than  twenty  years,  without  inter- 
ruption or  claim  from  the  mort- 
gagor or  his  heirs,  a  sale  of  the 
property  and  conveyance  under  the 
mortgage,  or  almost  anything  else 
necessary  to  give  repose  to  the  title 
of  the  purchaser,  will  be  presumed. 
Dawson  v.  Hoyle,  58  Ala.  44. 

«§  379. 


1658  MORTGAGE    FORECLOSURES.  [§    1253 

out  an  account  of  rents  and  profits,  may  be  maintained  by  the 
mortgagor  or  those  claiming  under  him,  against  the  mort- 
gagee in  possession,  or  those  claiming  under  him,  unless  there 
has  been  adverse  possession  of  the  mortgaged  premises  for 
twenty  years  after  the  breach  of  a  condition  of  the  mortgage, 
or  the  non-fulfilment  of  a  covenant  therein  contained.^" 

§  1253.  By  purchase  by  mortgagee. — The  supreme 
court  of  Arkansas,  in  the  case  of  Moore  v.  Anders,^^  say  that 
the  mortgagor's  equity  of  redemption  is  not  barred  by  a  pur- 
chase of  the  mortgaged  premises  made  by  a  holder  of  the  mort- 
gage debt;  but  where  the  mortgagee  or  the  purchaser  of  the 
mortgage  debt,  on  default  takes  possession  of  the  mortgaged 
premises  and  holds  the  same  for  the  space  of  twenty  years 
without  paying  interest,  or  in  any  other  way  accounting  for 
said  possession,  and  there  is  no  circumstance  appearing  to 
justify  the  neglect,  the  mortgagor's  right  of  redemption  will 
be  barred/^ 

§  1254.  Tender  does  not  revive. — In  those  cases  where 
the  right  of  the  owner  of  the  equity  of  redemption  to  redeem 
has  been  barred  by  the  running  of  the  statute  of  limitations, 
such  right  will  not  be  revived  by  a  subsequent  tender  of  the 
amount  due  on  the  mortgage,  and  a  demand  of  the  possession 
of  the  premises. ^^ 

§  1255.  Waiver. — The  extinction  by  the  running  of  the 
statute  of  limitations  of  the  right  of  the  mortgagor,  or  those 
claiming  under  him,  to  redeem,  may  be  waived  by  an  act  of 

^0  Becker  v.   McCrea,   193   N.   Y.  How.)  571,  14  L.  ed.  1063;  Hughes 

423,  23  L.R.A.(N.S.)  754,  86  N.  E.  v.   Edwards,  22  U.   S.    (9  Wheat.) 

463.  489,  6  L.  ed.  142.     See  ante,  §  1252. 
51  14  Ark.  628,  60  Am.  Dec.  551.  ^3  Cunningham    v.    Hawkins,    24 

^^Brobst  V.  Brock,  77  U.   S.    (10  Cal.  403,  85  Am.  Dec.  72;  Miner  v. 

Wall.)    519;    sub   nom   Doe    ex.   d.  Beekman,  11  Abb.   (N.  Y.)   Pr.  N. 

Brobst    V.    Roe,    19    L.    ed.    1002;  S.  147,  42  How.   (N.  Y.)   Pr.  33. 
Slicer  v.  Pittsburgh,  57  U.   S.    (16 


§  1256] 


REDEMPTION. 


1659 


the  mortgagee,  or  the  owner  of  the  mortgage,  which  indicates 
a  disclaimer  of  the  foreclosure,  and  presumptively  leaves  the 
mortgage  subject  to  redemption  in  equity;  such  as  bringing 
suit  and  obtaining  a  judgment  on  the  original  debt,^*  or  doing 
any  other  act  which  shows  that  the  party  treats  the  debt  as 
still  due,  and  the  account  as  still  open;^^  and  the  extinguish- 
ment of  the  mortgagor's  equity  effected  by  judicial  action,  is 
still  subject  to  be  waived  by  an  admission  on  the  part  of  the 
mortgagee,  or  the  party  holding  the  equity  of  redemption.^^ 

§  1256.  Same — By  acknowledgment. — Any  acknowl- 
edgement on  the  part  of  the  mortgagee,  or  those  in  privity 
with  him,  of  the  right  of  the  mortgagor  to  redeem,  will  pre- 
vent the  running  of  the  statute  of  limitations  and  the  bar  of 
redemption,"  such  as  an  admission  of  the  existence  of  the  debt, 
whether  oral  or  in  writing ;  ^*  an  assignment  of  the  mortgage  as 


^^  Hazard  v.  Robinson,  15  R.  I. 
226,  2  Atl.  433. 

55  Bissell  v..  Baseman,  2  Dev.  ( N. 
C.)  154,  166.  See  McEwen  v.  W el- 
leys,  1  Root  (Conn.)  202,  1  Am. 
Dec.  39;  Strong  v.  Strong,  2  Aik. 
(Vt.)  373. 

56  Chapin  v.  Wright,  41  N.  J.  Eq. 
(14  Stew.)  438,  5  Atl.  574. 

5'^  Chapin  v.  Wright,  41  N.  J.  Eq. 
(14  Stew.)  438,  5  Atl.  574; 
Robinson  v.  Fife,  3  Ohio  St.  562; 
Waldo  V.  Rice,  14  Wis.  290 ;  Slicer 
V.  Bank  of  Pittsburg,  57  U.  S.  (16 
How.)  572,  579,  14  L.  ed.  1063, 
1066;  Dexter  v.  Arnold,  1  Sumn. 
C.   C.    109. 

If  a  mortgagee  in  possession  shall, 
after  the  equity  of  the  mortgagor 
has  become  barred  by  lapse  of  time, 
admit,  either  by  word  or  act,  that 
his  mortgage  is  still  a  subsisting 
lien,  the  bar  previously  exi?,ting  will 
be  considered  to  have  been  waived, 
and    the    equity    of    the    mortgagor 


revived.  Chapin  v.  Wright,  41  N. 
J.  Eq.  (14  Stew.)  438,  5  Atl.  574. 

58  Wells  V.  Harter,  56  Cal.  342 ; 
Kerndt  v.  Porterfield,  56  Iowa,  412, 
9  N.  W.  322;  Schmncker  v.  Sibert, 
18  Kan.  104,  26  Am.  Rep.  765; 
Southard  v.  Pope,  9  B.  Men.  (Ky.) 
261;  Hall  v.  Felton.  105  Mass.  516; 
Lyon  V.  McDonald,  51  Mich.  435,  16 
N.  W.  800;  Murphy  v.  Coates,  22,  N. 
J.  Eq.  (6  Stew.)  424;  Mosely  v. 
Crocket,  9  Rich.  (S.  C.)  Eq.  339; 
Hayivood  v.  Ensley,  8  Humph. 
(Tenn.)  460;  Suavely  v.  Pickle,  29 
Gratt.  (Va.)  27. 

Parol  admissions  by  mortgagee 
effect  his  estoppel  to  deny  mort- 
gagor's right  to  redeem.  Hough  v. 
Bailey,  32  Conn.  288;  Fenwick  v. 
Aiacey,  1  Dana  (Ky.)  276;  Marks  v. 
Pell,  1  John.  Ch.  (N.  Y.)  594; 
Shepperd  v.  Murdock,  3  Murph. 
(N.  C.)  218;  Walthol  v.  Johnson,  2 
Call  (Va.)  275;  Dexter  v.  Arnold, 
3  Sumn.  C.  C.  160;  Perry  v.  Mars- 


1660 


MORTGAGE    FORECLOSURES. 


[§   1256 


security  for  a  debt  owing  from  a  mortgagee  in  possession ;  ^^ 
bringing  an  action  to  foreclose  '  e  mortgage,^"  or  filing  an 
answer  in  equity ;  "  devise  by  will ;  ^^  letters  written  containing 
admissions  of  the  existence  of  the  mortgage  and  of  the  rights 
of  the  mortgagor ;  ^^  recitals  in  a  deed ;  ^*  in  a  mortgage ;  ^^  or 
rendering  an  account  of  the  amount  due  on  the  mortgage 
debt.«« 


ton,  2  liro.  C.  C.  397;  Reeks  v. 
Postliethwaite,  1  Coop.  Eq.  161 ; 
Whiting  v.  White,  1  Coop.  Eq.  1 ; 
Rayner  v.  Oastler,  6  Madd.  274. 

^^  Borst  V.  Boyd,  3  Sandf.  Ch. 
(N.  Y.)  501. 

^Calkins  V.  Calkins.  3  Barb.  (N. 
Y.)  305;  Robinson  v.  Fife,  3  Ohio 
St.  551 ;  Conway  v.  Shrimpton,  5 
Bro.  P.  C.  187.  See  Clark  v.  Pot- 
ter, 32  Ohio  St.  49,  60;  Fox  v. 
Recder.  28  Ohio  St.  181.  189,  22  Am. 
Rep.  370. 

61  See  Stump  v.  Henry.  6  Md. 
201,  61  Am.  Dec.  300;  Durken  v. 
Cleveland,  4  Ala.  227 ;  Rankin  v. 
Maxwell,  2  A.  K.  Marsh  (Ky.)  491 ; 
12  Am.  Dec.  431 ;  Belden  v.  Davies, 
2  Hall  (N.  Y.)  444;  Erskine  v. 
North.  14  Gratt.  (Va.)  60;  Dexter 
V.  Arnold,  1  Sumn.  C.  C.  109.  3 
Sumn.  C.  C.  152;  Goode  v.  Job,  1 


El.    &    El.    6,    102    Eng.    C.    L.    4; 
Horf/^  V.  Healey,  6  Madd.  181. 

62  Kohlheim  v.  Harrison,  34  Miss. 
457;  Orrf  v.  5w.7/i,  2  Eq.  Cas.  Abbr. 
600;  Lake  v.  Thomas.  3  Ves.  17. 

63  Stanfield  v.  Hobson,  10  Beav. 
236;  Vernon  v.  Bcthell,  2  Eden, 
110;  Thompson  v.  Bowyer,  9  Jur. 
N.  S.  863;  Cutler  v.  Cremer,  1  L. 
J.  Ch.  108;  rr?i/ocyt  V.  7?»&n'.  12 
Sim.  402. 

^^  Bidden  v.  Brizzolara,  56  Cal. 
374,  64  Cal.  354;  Ca/je  Girardeau 
Co.  V.  Harbison,  58  Mo.  90;  Jaync 
V.  Hughes,  10  Exch.  430;  Lucas  v. 
Dennison.  7  Jur.  1122;  Carrzf  v. 
Johnson,  2  Sch.  &  L.  280;  Hansard 
V.  f/flrt/.v,  18  Ves.  455. 

^^  Palmer  v.  Butler,  36  Iowa, 
576. 

^^  Anonymous,  2  Ark  333;  5or- 
rt);/  V.  Martin,  19  Ves.  327 ;  Edsdcll 
V.  Buchanan,  2  Ves.  Jr.  84. 


APPENDIX  OF  FORMS. 


No.  1. 
General  Complaint  in  Foreclosure  by  Action. 

[Title   of  action   containingl 
names  of  all  the  parties'].  \ 

The  complaint  of  the  plaintiff  in  the  above  entitled  action 
respectfuU},-  shows  to  this  court  (upon  information  and  belief)  : 

That  the  defendant,  CD.,  for  the  purpose  of  securing  the  pay- 
ment to  E.  F.,  his  certain  attorney,  executors,  administrators 
or  assigns,  of  the  sum  of  dollars,  with  interest  thereon,  on  or 

about  the  day  of         ,  19     ,  executed  and  delivered  to  the 

said  E.  F.  a  bond  bearing  date  on  that  day,  sealed  with  his  seal, 
whereby  the  said  C.  D.,  did  bind  himself,  his  heirs,  executors  and 
administrators,  in  the  penal  sum  of  dollars,  upon  condition 

that  the  same  should  be  void,  if  the  said  C.  D.,  his  heirs,  executors 
or  administrators  should  pay  to  the  said  E.  F.,  his  certain  attor- 
ney, executors,  administrators  or  assigns,  the  sum  of  money  first 
above  mentioned,  as  follows :  [Insert  conditions  of  the  bond 
verbatim,  if  possible]. 

That  it  was  therein  expressly  agreed,^  that  should  any  default 
be  made  in  the  payment  of  the  principal  or  interest,  or  of 
any  part  of  the  said  principal  or  interest,  when  the  same  should 
become  due  and  payable,  according  to  the  conditions  of  said 
bond,  as  above  expressed,  and  should  the  same  remain  unpaid  for 
the  space  of  days  after  the  same  had  become  due  and  payable, 
then  the  said  moneys,  principal  and  interest,  at  the  option  of  the 
said  obligee,  his  executors,  administrators  or  assigns,  should  be- 

1  Insert  in  case  bond  and  mortgage  contain  an  interest  clause. 

1661 


1662  APPENDIX    OF    FORMS. 

come  and  be  due  and  payable  immediately  thereupon,  any  other 
provision  in  said  bond  to  the  contrary  notwithstanding. 

That  the  said  obligor,^  in  and  by  said  bond,  did  covenant  for 
himself,  his  heirs,  executors  and  administrators,  that  the  build- 
ings erected  and  to  be  erected  on  the  mortgaged  premises, 
described  in  the  mortgage  given  as  collateral  to  said  bond  and 
bearing  even  date  therewith,  should  be  kept  insured  against  loss  or 
damage  by  fire,  in  a  sum  not  less  than  dollars,  and  that  the 

poHcy  therefor  should  be  assigned  to  said  obligee,  his  executors,, 
administrators  or  assigns,  and  that  upon  any  default  thereof,  "llie 
said  obligee,  his  executors,  administrators  or  assigns,  were  there- 
by authorized  to  insure  the  same,  and  to  add  the  sums  paid 
therefor  to  the  moneys  then  due,  or  first  to  become  due,  upon 
said  bond,  and  that  they  should  be  payable  on  demand,  with  in- 
terest from  the  time  of  such  payment,  and  should  also  be  a  lien  on 
said  premises  secured  by  said  mortgage,  and  added  to  the  sums 
otherwise  secured  thereby;  and  also  that  in  case  the  taxes,' 
which  might  thereafter  be  assessed,  taxed  or  levied  against  said 
mortgaged  premises,  were  at  any  time  allowed  to  remain  unpaid 
for  days  after  the  said  taxes  had  become  due  and  payable, 

then  the  said  obligee,  his  executors,  administrators  or  assigns, 
might  pay  the  same,  and  the  sum  so  paid  should  also  be  a  lien  on 
said  mortgaged  premises  and  be  added  to  the  sums  thereby  se- 
cured and  payable  on  demand,  with  interest. 

That,  as  a  collateral  security  for  the  payment  of  said  indebted- 
edness,  the  said  defendants,  C.  D.,  and  ]\I.  D.,  his  wife,  on  the 
same  day  executed,  duly  acknowledged  and  delivered  to  the 
said  E.  F.,  a  mortgage,  whereby  they  granted,  bargained  and 
sold  to  the  said  E.  F.,  his  heirs  and  assigns,  the  following 
described  premises,  with  the  appurtenances,  thait  is  to  say : 
[Here  insert  description  of  premises  from  mortgage'],  which 
mortgage  was  duly  recorded  in  the  ofifice  of  the  clerk  of  the  county 
of  ,  on  the  day  of  ,  in  the  year  19     ,  at  o'clock 

M.,  in  book  No.  of  mortgages,  at  page 

The  said  mortgage  contained  the  same  condition  as  said 
bond,  and  the  further  condition  that  if  the  mortgagor,  his  heirs 
or  assigns,  should  not  pay  the  moneys  thereby  secured,  according 
to  the  terms  thereof,  then  the  said  E.  F.,  his  executors,  adminis- 
trators or  assigns,  were  empowered  to  sell  the  said  mortgaged 

2  Insert  in  case  the  action  is  to  recover  money  paid  for  insurance  pre- 
miums. 

3  Insert  in  case  money  has  been  paid  for  taxes. 


APPENDIX    OF    FORMS.  1663 

premises  in  due  form  of  law,  and  out  of  the  moneys  arising  from 
such  sale  to  retain  the  amount  due  for  principal,  interest,  taxes, 
assesment  and  insurance,  in  and  by  said  bond  and  mortgage  se- 
cured to  be  paid,  with  the  costs  and  expenses  of  the  proceedings 
thereon,  the  surplus,  if  any  there  should  be,  to  be  returned  to 
the  said  mortgagor,  C.  D.,  his  heirs  or  assigns. 

That  thereafter,  the  said  defendant,  E.  F.,  by  an  instrument 
in  writing,*  given  under  his  hand  and  seal,  dated  the  day 

of  19     ,  and  recorded  in  the  office  of  the  clerk  of  the  county 

of         ,  on  the  day  of  19     ,  for  a  valuable  considera- 

tion therein  expressed,  duly  assigned  said  bond  and  mortgage 
to  this  plaintiff,  H.  O.,  who  now  is  and  has  since  been  the  owner 
and  holder  thereof,  and  also  guaranteed  to  the  plaintiff  that 
the  sum  secured  thereby  would  be  paid  when  due,  with  interest ; 
[or  which  said  assignment  also  contains  a  covenant  in  the  follow- 
ing words,  to  wit:    Set  forth  the  covenant  verbatim]. 

[If  the  bond  and  mortgage  were  assigned  as  collateral  security 
only,  such  fact  and  the  actual  interest  and  claim  of  the  plaintiff 
should  be  fully  alleged  here]. 

That  thereafter,^  the  said  C,  D.,  and  M.  D.,  his  wife,  by  their 
deed  of  conveyance,  executed  under  their  hands  and  seals,  dated 
the  day  of  ,  19  ,  and  recorded  in  the  olftce  of  the  clerk 
of  the  county  of  ,  in  book  No.  of  deeds,  at  page  , 

duly  conveyed  the  said  mortgaged  premises  to  the  defendant, 
J.  H.,  subject  to  said  mortgage;  that  the  said  defendant,  J.  H., 
in  and  by  said  deed  of  conveyance,  and  by  accepting  the  same, 
assumed  said  mortgage  and  covenanted  and  agreed  to  pay  off 
and  discharge  the  same  as  part  of  the  consideration  in  said  deed 
of  conveyance  expressed.     [Or  set  forth  the  covenant  verbatim]. 

And   the   plaintiff   further   shows,   that   the   sum   of 
dollars  became  due  and  payable  by  the  terms  of  said  bond  and 
mortgage,  on  the  day  of  19     ,  that  the  same  has  re- 

mained unpaid  for  more  than  days  thereafter,  that  the  said 
plaintiff  has  elected  and  does  elect  that  the  whole  sum  owing 
upon  said  bond  and  mortgage  be  due  and  payable,  and  that 
thereby,  by  the  provisions  of  said  bond  and  mortgage,  the  same 
became  due  and  payable  before  the  commencement  of  this  action. 

And  the  plaintiff  further  shows,  that  the  said  defendants,  C.  D., 
and  J.  H.,  have  failed  to  comply  with  the  conditions  of  the  said 

^  Insert  in  case  the  mortgage  has  been  assigned. 

5  Insert  in  case  premises  have  been  conveyed  with  assumption  of  pay- 
ment of  mortgage. 


1664  APPENDIX    OF    FORMS. 

bond  and  mortgage,  by  omitting  to  pay  the  sum  of 
dollars,  which  by  the  terms  and  conditions  of  said  bond  and  mort- 
gage became  due  and  payable  on  the  day  of  19  ; 
and  also,  by  omitting  to  pay  the  sum  of  dollars  for  insur- 
ance, as  required  by  said  bond  and  mortgage,  which  sum  of 
dollars  was  advanced  and  paid  for  such  insurance  by  this 
plaintiff  on  the  day  of  19  ,  for  the  payment  whereof 
due  demand  was  made  before  the  commencement  of  this  action, 
the  same  being  also  a  lien  added  to  the  other  claims  by  said 
mortgage  secured  to  be  paid ;  and  also,  by  omitting  to  pay  the 
sum  of  dollars,  for  taxes  or  assessments,  taxed  or  assessed 
against  the  said  mortgaged  premises,  and  left  unpaid  for 
days  after  the  same  became  due  and  payable,  which  said  sum  for 
taxes  and  assessments  was  thereafter  advanced  and  paid  by  this 
plaintiff  on  the  day  of  ,  19  ;  and  that  the  same  is 
justly  due  and  unpaid  with  interest  thereon  from  the  day  of 
19  ,  and  is  also  a  lien  added  to  the  other  claims  by  said 
mortgage  secured  to  be  paid ;  and  that  there  is  now  justly  due 
to  the  plaintiff  upon  said  bond  and  mortgage  the  same  of 
dollars,  with  interest  thereon  from  the  day  of  ,  19  , 
and  the  further  sum  of  dollars  paid  for  insurance  as  afore- 
said, with  interest  thereon  fram  the  day  of  19  ,  and 
the  further  sum  of  dollars  paid  for  taxes  and  assessments 
as  aforesaid,  with  interest  thereon  from  the  day  of  19  , 
amounting  in  the  aggregate  to  the  sum  of  dollars ;  and  that 
there  is  to  become  due  thereon  the  further  sum  of  dollars 
with  interest  thereon  from  the          day  of            19     . 

And  the  plaintiff  further  shows,  that  the  defendants,  R.  P.  and 
D.  O.,  are  infants,  under  the  age  of  fourteen  years  and  reside 
with  their  parents   {or  guardian)   at  ,  ;  that  the  de- 

fendant, D.   P.,  is  an  infant  above  the  age  of   fourteen  years, 
residing  with  at  ;  and  that  the  defendant,  O.  S.,  does 

not  reside  within  the  state  of  New  York,  but  at  in 

Instate  residence  if  knozvn~\. 

And  the  plaintiff  further  shows,  that  no  proceedings  have 
been  had  at  law  or  otherwise,  and  that  no  other  action  has  been 
brought,  to  his  knowledge  or  belief,  for  the  recovery  of  said  sum 
secured  by  said  bond  and  mortgage,  or  for  the  recoverv  of  the 
said  mortgage  debt  or  any  part  thereof.  [//  this  is  not  true. 
state  tvhat  proceedings  have  been  taken]. 

And  the  plaintiff  further  shows,  upon  information  and  belief, 
that  the  defendants,  C.  D.,  M-  D.,  J.  H.,  R.  P.,  X.  Y.  and  D.  P., 
have,  or  claim  to  have,  some  interest  in,  or  lien  upon,  the  said 


APPENDIX    OF    FORMS.  1665 

mortgaged  premises  or  some  part  thereof,  which  interest  or  Hen, 
if  any,  has  accrued  subsequently  to  the  hen  of  said  mortgage. 

[//  parties  zvith  paramount  liens  are  made  defendants  for  the 
purpose  of  having  them  ascertained,  such  liens  should  be  fully 
stated  here']. 

Wherefore,  the  plaintiff  demands  judgment,  that  the  defendants 
and  all  persons  claiming  under  them,  or  either  or  any  of  them, 
subsequently  to  the  commencement  of  this  action,  and  every  per- 
son, whose  conveyance  is  subsequent  or  subsequently  recorded, 
may  be  barred  and  foreclosed  of  all  right,  title,  claim,  lien  and 
equity  of  redemption  in  said  mortgaged  premises ;  that  the  said 
mortgaged  premises,  or  so  much  thereof  as  may  be  sufficient  to 
raise  the  amount  due  to  the  plaintiff  for  all  sums  paid  for  in- 
surance, taxes,  or  assessments,  and  also  for  principal,  interest  and 
costs,  and  which  may  be  sold  in  parcels  without  material  injury 
to  the  parties,  may  be  decreed  to  be  sold  according  to  law ;  that 
out  of  all  the  moneys  arising  from  the  sale  thereof,  the  plaintiff' 
may  be  paid  the  amount  due  on  said  bond  and  mortgage  with 
interest  to  the  time  of  such  payment,  and  the  costs  and  expenses 
of  this  action,  so  far  as  the  amount  of  such  moneys  properly  ap- 
plicable thereto  will  pay  the  same ;  that  the  officer  making  such 
sale  be  directed  to  pay  from  the  proceeds  thereof,  all  taxes, 
assessments,  and  water  rates,  which  are  liens  on  the  property 
sold ;  that  the  defendants,  C.  D.,  E.  F.  and  J.  H.,  may  be  ad- 
judged to  pay  any  deficiency  which  may  remain  after  applying 
of  all  said  moneys  so  applicable  thereto ;  and  that  the  plaintiff 
may  have  such  other  or  further  relief,  or  both  in  the  premises, 
as  shall  be  just  and  equitable. 

T.  R., 

Plaintiff's  Attorney. 

\^Add  verification  in  the  usual  form']. 


No.  2. 

Complaint  to  Foreclose  Mortgage  Executed  by  Infants 
Pursuant  to  Order  of  Court. 

[^Title  of  action  containing 
names  of  all  the  parties]. 

The   complaint   of   the   plaintiff   in   the   above   entitled   action 
respectfully  shows  to  this  court  (upon  information  and  belief)  : 
Mortg.  Vol.  II.— 105. 


1666  APPENDIX    OF    FORMS. 

That  a  petition  was  heretofore  presented  to  this  court  by  the 
defendant,  D.  P.,  an  infant  over  fourteen  years  of  age,  and  by 
the  defendants,  O.  P.,  R.  P.  and  T.  P.,  infants  under  the  age 
of  fourteen  years,  by  the  defendant,  C.  M.  P.,  their  mother  and 
next  friend,  praying  for  the  mortgaging  of  all  the  right,  title  and 
interest  of  said  infants  in  and  to  the  real  estate  hereinafter 
mentioned  and  described ;  and  that  such  proceedings  were  after- 
wards had  in  said  court  upon  the  said  petition,  that  an  order  of 
this  court  was  made  on  the  day  of        ,  19     ,  whereby  M.  C. 

was  appointed  the  special  guardian  of  said  infants  for  the  purpose 
of  such  application,  upon  his  giving  the  proper  security  therein 
required;  and  that  such  security,  duly  executed,  justified  and 
approved,  was  subsequently  filed  by  said  guardian  in  the  proper 
office. 

That  by  an  order  of  said  court  in  said  proceedings,  made  on 
the  day  of  ,  19     ,  that  said  M.  C.  was  authorized  and 

empowered  to  contract  for  the  mortgaging  of  all  the  right,  title 
and  interest  of  the  said  infants  in  the  said  real  estate,  for  an 
amount  not  exceeding  that  specified  in  the  referee's  report, 
referred  to  in  said  order,  and  upon  the  terms  and  conditions 
therein  mentioned,  to  wit :  for  dollars,  payable  in  years 

at  least,  or  in  a  longer  time,  at  the  rate  of  interest  per  annum. 

That  in  pursuance  of  the  last  mentioned  order,  the  said  special 
guardian  afterwards  made  his  report  to  the  said  court,  which 
report  was  dated  the  day  of  ,  19     ,  whereby  he  reported 

that  he  had  entered  into  an  agreement  with  this  plaintiff^,  subject 
to  the  approval  of  said  court,  for  the  mortgaging  to  said  plaintiff 
of  all  the  right,  title  and  interest  of  said  infants  in  and  to  the 
said  real  estate,  upon  the  terms  and  conditions  therein  mentioned, 
to  wit :  providing  for  the  execution  by  said  guardian  of  a  mort- 
gage, in  the  name  of  said  infants,  to  said  plaintiff,  for  the  amount 
and  time  and  upon  the  terms  and  conditions  upon  which  said 
mortgage,  upon  the  terms  and  conditions  provided  by  said  mort- 

That  by  another  order  of  said  court,  made  in  said  proceedings 
on  the         day  of  ,  19     ,  it  was  ordered,  that  the  said  report 

of  said  special  guardian  and  the  agreement  therein  mentioned, 
be,  and  the  same  were  thereby,  ratified  and  confirmed ;  and  that 
the  said  special  guardian,  in  the  names  of  said  infants,  execute, 
acknowledge  and  deliver  to  the  said  plaintiff,  a  good  and  sufficient 
mortgage,  upon  the  terms  and  conditions  provided  by  said  agree- 
ment, of  all  the  estate,  right,  title  and  interest  of  said  infants  in 
and  to  the  said  premises,  being  the  free  simple  thereof,  subject 
to  their  mother's  dower  interest  therein,  as  hereinafter  mentioned, 


APPENDIX    OF    FORMS.  1667 

Upon  the  said  plaintiff's  compl3ang  with  the  said  terms  and  con- 
ditions of  the  said  agreement  by  which  such  mortgage  was  to  be 
deHvered,  to  wit :  the  payment  to  said  special  guardian  by  him 
of  the  sum  of  dollars. 

That  the  said  plaintiff  thereafter  complied  with  the  said  terms 
and  conditions  of  said  agreement  on  his  part  to  be  performed 
and  paid  the  said  special  guardian  the  sum  of  dollars. 

That  the  said  infants,  by  their  said  special  guardian,  pursuant 
to  the  several  orders  aforesaid,  and  in  pursuance  of  the  statute  in 
such  case  made  and  provided,  and  in  consideration  of  the  sum 
of  dollars,  paid  to  their  said  special  guardian  as  aforesaid, 

and  the  said  C.  M.  P.,  the  mother  of  said  infants,  who  had  a 
vested  dower  right  in  said  premises  as  the  widow  of  L.  P.,  de- 
ceased, the  father  of  said  infants,  in  consideration  of  the  sum 
paid  to  said  special  guardian  and  of  one  dollar  to  her  in  hand 
paid,  as  a  consideration  for  releasing  her  said  dower  interest  in 
said  premises  to  said  plaintiff,  (the  said  C.  M.  P.  thereby  agree- 
ing, in  consideration  aforesaid,  that  she  would  not  assert  or  set 
up  her  dower  interest  in  said  premises  as  against  said  mortgage 
and  against  the  said  plaintiff,  the  mortgagee  therein  named,  his 
executors,  administrators  or  assigns),  on  the  day  of  ,  19  , 
as  security  for  the  payment  of  said  principal  sum  of  dollars, 

with  interest  thereon,  as  hereinafter  mentioned,  did  execute,  duly 
asknowledge  and  deliver  to  the  said  plaintiff  a  mortgage,  whereby 
they  granted,  bargained  and  sold  to  the  said  plaintiff  the  follow- 
ing described  premises,  with  the  appurtenances,  that  is  to  say : 
[Here  insert  description  of  premises  from  mortgage],  upon  the 
express  condition,  that  if  the  said  parties  of  the  tirst  part  should 
well  and  truly  pay  unto  the  said  party  of  the  second  part,  his 
executors,  administrators,  or  assigns,  the  sum  of  dollars  in 

years  from  the  date  of  said  mortgage,  with  interest  thereon 
at  the  rate  of  per  centum  per  annum,  payable  semi-annually 

from  the  date  thereof,  and  should  keep  the  buildings  erected,, 
or  thereafter  to  be  erected  upon  said  premises,  insured  in  some 
solvent  incorporated  fire  insurance  company  of  this  state,  against 
loss  of  damage  by  fire  in  the  sum  of  at  least  dollars,  and 

should  assign  and  deliver  the  policy  or  policies  of  such  insurance, 
and  the  receipts  or  certificates  of  renewal  thereof,  to  the  said 
party  of  the  second  part,  his  executors,  administrators,  or  assigns, 
so  and  in  such  manner  and  form  that  they  should  at  all  time  and 
times,  until  the  full  payment  of  the  said  money,  have  and  hold 
said  policies  as  a  collateral  and  full  security  for  the  payment  of 
all  money  due  or  to  become  due  upon  said  mortgage,  and  should 


1668  APPENDIX    OF    FORMS. 

during  all  the  time,  until  the  said  moneys  secured  by  said  mort- 
gage should  be  fully  paid  and  satisfied,  pay  and  discharge,  im- 
mediately after  they  should  become  due  or  payable,  all  taxes, 
water  rates,  assessments,  or  other  charges  which  might  be  levied, 
laid,  or  assessed  upon  the  above  described  premises  or  any  part 
thereof ;  then  the  said  mortgage  and  the  estate  thereby  granted, 
should  cease,  determine  and  become  null  and  void. 

And  the  plaintiff  further  shows,  that  the  said  mortgage  was 
duly  recorded  in  the  office  of  the  clerk  of  the  county  of  .  on 

the  day  of  ,  19     ,  o'clock  m.,  in  Book 

No.  of  mortgages,  at  page 

l^Adapt  the  remainder  of  this  form  from  Form  No.  1.] 


No.  3. 

Complaint  to  Foreclose   Savings  and  Loan  Association 

Mortgage. 

[Title  of  action  containing\ 
names  of  all  the  parties].^ 

The  plaintiff  in  the  above  entitled  action  complains  of  the 
defendants  therein,  and  states  to  the  court  (upon  information 
and  belief)  : 

That  the  plaintiff  is  a  domestic  corporation,  located  at  , 

and  duly  constituted,  organized  and  incorporated  in  pursuance 
of  an  act  entitled,  "An  Act  for  the  Incorporation  of  Building, 
Mutual  Loan  and  Accumulating  Fund  Associations,"  passed 
April  10th,  1851,  and  of  the  act  or  acts  supplementary  thereto, 
and  amendatory  thereof ;  that  the  defendant,  C.  D.,  on  or  about 
the  day  of  ,  19     ,  executed  under  his  hand  and  seal, 

and  delivered  to  this  plaintiff,  a  bond,  dated  on  that  day,  in  the 
penal  sum  of  dollars,  with  the  conditions  therein  written 

in  substance,  that  if  the  said  obligor  in  said  bond  named,  would 
pay  or  caused  to  be  paid  to  the  association  or  to  its  suc- 

cessor or  assigns,  the  sum  of  dollars  in  manner  following, 

that  is  to  say :  the  sum  of  dollars  and  cents  contribu- 

tion or  principal,  and  dollars  and  cents  interest  on 

shares  of  the  capital  stock  of  said  association,  each  and  every 
week  from  the  date  thereof,  until  the  dues  and  dividends  accrued 
on  said  shares  should  equal  the  said  principal  sum  of  dollars, 


APPENDIX    OF    FORMS.  1669 

including  premiums  paid  for  any  loan,  by  the  consent  of  such 
holder ;  and  also  all  dues,  fines  and  penalties  that  might  be  im- 
posed upon  the  said  obligor,  as  a  member  of  said  association, 
pursuant  to  the  articles,  rules  and  regulations  thereof,  to  be 
paid  into  the  treasury  of  said  association  on  each  and  every 
(day)    thereafter,   until   the   said   sum  of  dollars  has   been 

fully  paid  as  aforesaid,  then  the  said  bond  to  be  void,  else  to  re- 
main in  full  force  and  virtue ;  and  with  the  agreement  also  therein 
written,  in  substance,  that  in  case  any  of  said  installments  of 
principal  or  interest,  or  any  part  thereof,  or  any  fines  or  penalties 
imposed   as  aforesaid,   should   remain   unpaid   for  months 

after  the  same  should  become  due,  then  the  whole  of  said  prin- 
cipal sum,  together  with  the  unpaid  interest,  dues,  penalties,  fines 
and  assessments  thereon,  should  become  due  and  payable  forth- 
with. 

And  to  secure  the  payment  of  the  principal,  interest,  dues,  fines 
and  premiums  mentioned  in  the  conditions  of  said  bond,  the  said 
C.  D.  and  M.  D.,  his  wife,  did  at  the  same  time  execute  under 
their  hands  and  seals,  duly  acknowledge  and  deliver  to  this 
plaintiff  a  mortgage,  bearing  even  date  with  said  bond,  whereby 
they  granted,  bargained  and  sold  to  this  principal,  its  successors 
and  assigns,  the  following  described  premises,  with  the  appurte- 
nances, that  is  to  say:  [Here  insert  description  of  premises  from 
mortgage'\. 

That  said  mortgage  contained  the  same  conditions,  as  the  said 
bond,  and  the  further  condition,  that  if  said  mortgagors  should 
not  pay  the  moneys  thereby  secured,  according  to  the  terms 
thereof,  then  the  said  plaintiff,  or  its  successors,  or  assigns,  were 
empowered  to  sell  the  mortgaged  premises  in  due  form  of  law, 
and  out  of  the  moneys  arising  from  such  sale  to  retain  the  amount 
then  due  upon  said  bond  and  mortgage,  secured  to  be  paid,  to- 
gether with  the  costs  and  charges  of  the  proceedings  thereon, 
the  surplus,  if  any  there  should  be,  to  be  returned  to  the  said  C.  D.,. 
his  heirs  and  assigns,  which  said  mortgage  was  duly  recorded  in 
the  office  of  the  clerk  of  the  county  of  ,  and  the  day  of 

,19     ,  at  o'clock         M.,  in  book  No.  of  mortgages, 

at  page 

That  at  the  time  of  the  execution  and  delivery  of  said  bond 
and  mortgage,  as  aforesaid,  the  said  C.  D.  was,  and  still  is,  a 
member  of  said  association,  and  is  the  owner  of  shares  of 

the  capital  stock  thereof;  that  said  bond  and  mortgage  were 
given,  as   aforesaid,   to   secure  the   indebtedness  of  dollars 

upon        of  such  shares  loaned  to  the  said  C.  D. 


1670  APPENDIX    OF    FORMS. 

That  the  capital  stock  of  said  association  consists  of  shares 

of  dollars  each ;  that  by  the  rules  and  regulations  of  said 

association  it  was  provided,  among  other  things,  that  the  said 
capital  stock  should  be  payable  in  weekly  installments  of 
cents  per  share,  from  and  including  the  first  day  of  membership ; 
and  that  after  being  awarded  a  loan,  every  member  should  pay 
to  the  said  association,  weekly,  the  full  sum  of  cents  interest 

per  share  on  each  and  every  share  of  said  loan ;  and  tha  tevery 
member,  neglecting  to  pay  said  installments  regularly,  should 
forfeit  and  pay  to  said  association  cents  per  week  as  a  fine 

for  each  and  every  share  of  such  stock  held  by  him,  and  for 
neglecting  to  pay  said  weekly  interest,  should  forfeit  and  pay 
as  a  fine  the  full  sum  of  cents  per  share,  of  the  loan  to  him, 

for  each  and  every  week  he  should  be  in  default  of  such  weekly 
payments. 

That  the  said  C.  D.  failed  to  comply  with  the  conditions  of 
said  bond  and  mortgage  by  omitting  to  pay  the  sum  of  dollars 

contribution  or  principal,  and  dollars  interest,  which  became 

due  on  the  day  of  ,  19      ;  that  more  than  three  months 

have  elapsed  since  the  same  became  due ;  that  the  same  and  all 
anstallments  of  principal  and  interest  which  have  become  due 
since  that  time,  still  remain  unpaid ;  and  that  there  remains  unpaid 
on  said  bond  and  mortgage  the  sum  of  dollars  principal, 

together  with  dollars  interest,   and  dollars  due  and 

dollars  fines,  amounting  in  the  aggregate  to  the  sum  of 
dollars,  with  interest  thereon  from  the  day  of  ,  19     . 

And  the  plaintiff  further  states  (upon  information  and  belief) 
that  the  defendants,  C.  D.,  M.  D.  and  J.  H.,  have,  or  claim  to  have, 
some  interest  in  or  lien  upon  said  mortgaged  premises,  or  some 
part  thereof,  which  interest  of  lien,  if  any,  has  accrued  subse- 
quently to  the  lien  of  said  mortgage. 

And  the  plaintiff  further  shows,  that  no  proceedings  have  been 
had  at  law  or  otherwise,  and  no  action  has  been  brought  to  the 
knowledge  or  belief  of  said  plaintiff,  for  the  recovery  of  said  sum 
secured  by  said  bond  and  mortgage,  or  for  the  recovery  of  said 
mortgage  debt,  or  any  part  thereof.  [//  not  true,  state  zvhat 
proceedings  have  been  taken']. 

Wherefore,  the  plaintiff  demands  that  the  defendants,  and  all 
parties  claiming  under  them,  or  either  or  any  of  them,  subsequent- 
ly to  the  commencement  of  this  action,  and  every  person  whose 
conveyance  is  subsequent  or  subsequently  recorded,  may  be  barred 
and  foreclosed  of  all  right,  title,  claim,  lien  and  equity  of  redemp- 
tion in  said  mortgaged  premises  and  every  part  thereof ;   that 


APPENDIX    OF    FORMS.  1671 

the  said  mortgaged  premises,  or  so  much  thereof  as  may  be 
sufficient  to  raise  the  amount  due  to  the  plaintiff  for  all  sums  paid 
for  taxes,  assessments,  or  insurance,  and  also  for  principal,  inter- 
est, fines  and  costs,  and  which  may  be  sold  in  parcels,  without 
material  injury  to  the  parties,  may  be  decreed  to  be  sold  accord- 
ing to  law ;  that  out  of  all  the  moneys  arising  from  the  sale  there- 
of, the  plaintiff  may  be  paid  the  amount  due  on  said  bond  and 
mortgage,  and  the  said  interest  and  fines,  with  the  interest 
thereon  to  the  time  of  such  payment,  together  with  the  costs  and 
expenses  of  this  action,  so  far  as  the  amount  of  such  moneys 
properly  applicable  thereto  will  pay  the  same;  that  the  officer 
making  such  sale  be  directed  to  pay  from  the  proceeds  thereof 
all  taxes,  assessments  and  water  rates,  which  are  liens  upon  the 
property  sold;  that  the  defendant,  C.  D.,  may  be  adjudged  to  pay 
any  deficiency  which  may  remain  after  applying  all  of  said  moneys 
so  applicable  thereto ;  and  that  the  plaintiff  may  have  such  other 
or  further  relief,  or  both  in  the  premises,  as  shall  be  just  and 
equitable. 

T.  R., 

Plaintiff's  Attorney. 
County  of  ,  ss.: 

H.  F.  being  duly  sworn,  says  that  he  is  the  of  the 

plaintiff,  in  the  above  entitled  action  ;  that  the  foregoing  complaint 
is  true  to  his  own  knowledge,  except  as  to  the  matters  therein 
stated  to  be  alleged  upon  information  and  belief,  and  that  as  to 
those  matters  he  believes  it  to  be  true ;  that  the  reason  why  this 
affidavit  is  not  made  by  the  plaintiff  is,  that  the  plaintiff  is  a 
corporation ;  that  deponent  is  an  officer  of  said  corporation,  to 
wit :  the  thereof ;  that  deponent's  knowledge  of  the 

facts  stated  in  said  complaint  is  derived  from  the  books  and 
papers  of  said  association,  which  are  kept  under  the  immediate 
supervision  of  deponent,  and  from  the  records  of  the  county 
clerk's  office. 

[Jurat].  H.  F. 


No.  4. 
General  Form  of  Answer. 

[Title  of  the  actionl. 

The  defendant,  C.  D.,  for  his  answer  to  the  complaint  of  the 
plaintiff   hrein,    denies    each   and   every    allegation   therein   con- 


1672  APPENDIX    OF    FORMS. 

tallied,  and  further  denies  that  the  plaintiff  is  the  lawful  owner  of 
the  bond  and  mortgage  mentioned  in  said  complaint,  or  of  either 
of  them,  or  that  he  has  any  interest  whatever  in  said  bond  and 
mortgage,  or  in  the  moneys  thereby  secured,  or  pretended  to  be 
thereby  secured. 

[And  for  a  further  answer  and  defence,  this  defendant  alleges 
and  states  to  the  court,  that  she  is,  and  at  the  time  of  the  execu- 
tion of  the  bond  and  mortgage  mentioned  in  said  complaint,  was 
a  married  woman  ;  that  the  said  bond  and  mortgage  were  not 
executed  for  any  debt  or  liability  of  this  defendant,  nor  for  any 
advance  or  loan  to  her,  nor  for  any  benefit  or  advantage  to  her 
or  to  her  estate  whatever,  but  were  given  solely  as  collateral  se- 
curity for  an  antecedent  pretended  indebtedness  of  her  husband ; 
that  the  said  mortgage  was  given  upon,  and  covers  the  sole  and 
separate  real  estate  of  this  defendant,  in  which  her  husband  has 
no  interest,  and  had  none  when  said  mortgage  was  given ;  that 
this  mortgage  was  executed  by  this  defendant  under  and  by  the 
direction,  coercion,  duress  and  threats  of  the  plaintiff  and  her 
said  husband,  and  was  not  her  free  and  voluntary  act ;  and  this 
defendant,  therefore,  insists  that  the  said  bond  and  mortgage  are 
void  and  of  no  effect,  and  no  lien  or  charge  upon  her  said  real 
estate.] 

And  this  defendant  further  answering,  shows,  that  the  loan 
alleged  in  the  complaint,  was  made  to  the  defendant  by  the 
plaintiff  on  the  corrupt  and  unlawful  agreement  between  them, 
that  the  plaintiff  should  reserve  and  secure  to  himself,  and  the 
defendant  would  pay  to  him,  for  the  use  of  said  sum,  a  greater 
sum  than  the  rate  of  per  centum  per  annum  ;  to  wit :  the 

rate  of  per  centum  per  annum  ( besides  a  commission  of  per 
centum  on  the  face  of  said  bond  and  mortgage). 

That  said  sum  was  deducted  and  reserved  from  the  amount  of 
said  bond  and  mortgage  by  said  plaintiff,  and  the  balance  only 
paid  to  said  defendant ;  that  is  to  say,  that  this  defendant  agreed 
to  pay,  and  the  plaintiff  agreed  to  receive,  dollars  for  said 

loan,  the  plaintiff  reserving  and  securing  to  himself  for  the  loan 
of  money  on  said  bond  and  mortgage,  until  the  maturity  there- 
of, dollars.^  [Or,  state  any  other  interest  or  compensation 
agreed  on;  and  the  payment  of  it,  if  it  has  been  paid^. 

6  See  Manning  v.  Tyler,  21  N.  Y.  567. 


APPENDIX    OF    FORMS.  1673 

Wherefore,  this  defendant  demands  that  the  complaint  in  this 
action  be  dismissed  with  costs. 

J.  z., 

Attorney  for  Defendant  C.  D. 
\ Office  and  post-office  address]. 
[Add  verification  in  the  usual  form]. 


No.  5. 

Infant  Defendant's  Answer. 

[Title  of  the  action.] 

The  defendants  R.  P.  and  D.  P..  by  M.  N..  their  guardian 
ad  litem,  answering  the  complaint  of  the  plaintiff  above  named, 
say,  that  they  are  strangers  to  all  and  singular  the  matters  and 
things  in  said  complaint  contained:  that  these  defendants  are 
infants  under  the  age  of  twenty-one  years,  and  claim  such  an 
interest  in  the  premises  described  in  said  complaint  as  they  are 
entitled  to,  and  submit  their  rights  to  the  court  for  protection. 
Dated,  the  day  of  ,  19     . 

V.  O. 

Attorney  for  Guardian  ad  litem. 
[Office  and  post-office  address]. 


No.  6. 

Notice  of  Object  of  Action,  with  Notice  of  No  Personal 

Claim. 

[Title  of  the  action]. 

To  the  above  named  defendant,  [name]: 

Take  notice,  that  the  summons  herewith  served  upon  you  in 
this  action,  is  issued  upon  a  complaint  praying  for  the  fore- 
closure of  a  mortgage  executed  by  C.  D.,  and  wife,  to  E.  F.. 
dated  the  day  of  ,  19     ,  and  recorded  in  the  office  of 

the  clerk  of  the  countv  of  .  in  book  No.        of  mortgages,  at 


1674  APPENDIX    OF    FORMS. 

page         ,  on  the  day  of  ,  19     ,  at  o'clock         m.,  to 

secure  the  payment  of  the  sum  of  dollars,  with  interest 

thereon  from  the  day  of  ,  19     ,  (and  which  mortgage 

has  been  duly  assigned  to  this  plaintiff ). 

That  there  is  now   due  and  owing  to  this  plaintiff,  on   said 
bond  and  mortgage,   the   sum   of  dollars,   with   interest 

thereon  from  the  day  of  ,  19      ;  that  the  following  is 

a  description  of  the  morgtaged  premises  :  [Insert  description  from 
mortgage.] 

That  no  personal  claim  is  made  against  you,  nor  against  any 
defendant,  except  against  the  defendants,  C.  D,  and  J.  H. 

Dated  the  day  of  ,  19     . 

T.  R.,  Plaintiff's  Attorney. 
[Office  and  post-office  address"]. 


No.  7. 
Notice  of  Pendency  of  Action. 

[Title  of  the  action']. 

Notice  is  hereby  given,  that  an  action  has  been  commenced 
and  is  now  pending  in  this  court,  upon  the  complaint  of  the 
above  named  plaintiff,  against  the  above  named  defendants,  for 
the  foreclosure  of  a  mortgage,  bearing  date  the  day  of  ,  19     , 

executed  by  C.  D.,  and  M.  D.,  his  wife,  to  E.  F.,  and  recorded  in 
the  office  of  the  clerk  of  the  county  of  ,  at  ,  on 

the       day  of        ,  19     ,  in  book  No.         of  mortgages,  at  page      , 
at  o'clock  in  the  noon  (which  said  mortgage  has  been 

duly  assigned  by  said  E.  F.,  to  the  above  named  H,  O.,  who  is 
the  plaintiff  herein). 

That  the  mortgaged  premises  affected  by  this  foreclosure  were, 
at  the  time  of  the  commencement  of  this  action,  and  at  the  time 
of  filing  this  notice  are,  situated  in  the  county  of  ,  and  that 

they   are   described   in   the    said   mortgage    as    follows,   to   wit : 
[Here  insert  description  of  premises  from  mortgage]. 

The  clerk  of  the  county  of  will  please  index  this  notice 

against  the  names  of  the  defendants,  C.  D.,  J.  H.  and  R.  P. 

Dated  the  day  of  ,  19     . 

T.  R.,  Plaintiff's  Attorney. 
[Office  and  post-office  address]. 


APPENDIX    OF    rORMS.  1675 

No.  8. 
County  Clerk's  Certificate  of  Filing  Lis  Pendens. 

{^Title  of  the  action]. 
County  of  ,  ss.: 

I,  clerk  of  the  county  of  ,  of  the  court 

thereof,  being  a  court  of  record  and  having  a  seal,  do  hereby 
certify,  that  I  have  compared  the  copy  of  the  notice  of  pendency 
of  action  in  the  above  entitled  action  hereto  annexed,  with  the 
original  thereof,  now  on  file  and  record  in  my  office,  and  that 
the  same  is  a  transcript  thereof  and  of  the  whole  of  said  original. 

And  I  do  hereby  further  certify  that  the  said  notice  of  pen- 
dency of  action  was  filed  and  recorded  in  my  said  office,  on 
the  day  of  ,  19     . 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed 
the  seal  of  my  said  office,  this  day  of  ,  19     . 

ISeal].  ^County  Clerk]. 


No.  9. 

Affidavit  of  Fling  Notice  of  Pendency  of  Action  Prelimin- 
ary to  Judgment. 

[Title  of  the  action]. 

County  of  ,  ss.: 

O.  J.,  being  duly  sworn,  says  that  he  resides  in  the  of  , 
in  the  county  of  ,  and  that  he  is  (managing  clerk  for  T.  R.), 

the  attorney  for  the  plaintiff  in  the  above  entitled  action ;  that 
this  action  was  brought  to  foreclose  a  mortgage  upon  real  prop- 
erty situated  in  the  county  of 

That  the  whole  sum  secured  by  said  mortgage  is  now  due  and 
payable,  (or,  that  an  installment  of  dollars  of  the  principal 

of    said    mortgage,    and    interest    thereon    from    the  day 

of  ,   19     ,  is  now  due  and  payable,  and  that  the  residue 


1676  APPENDIX    OF    FORMS. 

thereof,  being  the  sum  of  dollars,  and  interest  thereon  from 

the  day  of  ,  19     ,  will  become  due  and  payable  on  the 

day  of  .19     ). 

That  the  complaint  herein  was  filed  in  the  office  of  the  clerk 
of  the  county  of  ,  on  the  day  of  ,  19     ,  and  that 

a  notice  of  the  pendency  of  this  action,  containing  the  names  of 
all  the  parties  thereto,  the  object  of  the  action,  the  date  of  the 
said  mortgage,  the  names  of  the  parties  thereto,  the  time  and 
place  of  recording  the  same,  and  a  description  of  the  mortgaged 
premises,  and  containing  correctly  and  truly  all  the  particulars 
required  by  law  to  be  stated  in  such  notice,  was  more  than 
twenty  days  since,  viz.:  on  the  day  of         ,  19     ,  filed  and  re- 

corded in  the  office  of  the  clerk  of  the  county  of  ,  that  being 

the  county  in  which  the  mortgaged  premises  are  situated,  which 
filing  was  at  or  immediately  after  the  time  of  filing  said  com- 
plaint therein  as  required  by  law,  and  more  than  twenty  days 
since ;  and  that  since  the  filing  of  said  notice  the  complaint  in 
this  action  has  not  been  amended  by  making  new  parties  to  the 
action,  nor  so  as  to  aflfect  other  property  not  described  in  the 
original  complaint,  nor  so  as  to  extend  the  claims  of  the  plain- 
tiflf  as  against  the  mortgaged  premises. 

That  all  of  the  defendants  have  been  duly  served  with  the 
summons,  or  have  duly  appeared  herein  by  their  respective 
attorneys,  as  will  more  fully  appear  by  the  affidavits  of  service 
and  notices  of  appearance  which  are  hereto  annexed. 

That  none  of  the  defendants  are  infants  or  absentees  (or,  that 
none  of  the  defendants  are  infants,  except  the  defendant,  R.  P., 
who  has  appeared  by  his  guardian  ad  litem,  and  that  none  of  the 
defendants  are  absentees,  except  the  defendant,  O.  S.,  who  has 
been  duly  served  with  the  summons  by  publication  thereof,  under 
an  order  of  this  court,  proof  of  which  service  is  hereto  annexed). 

That  the  time  to  answer  has  expired  as  to  all  the  defendants, 
and  that  no  answer  or  demurrer  has  been  received  from  any 
defendant  (except  the  usual  general  answer  of  the  infant 
defendant.  D.  P.,  who  answers  by  his  guardian,  and  who  does  not 
controvert  any  of  the  allegations  of  the  complaint;  and  except 
also,  the  answer  of  the  defendant,  C.  D.,  the  issues  raised  by 
which  have  been  duly  tried  and  decided  in  favor  of  this  plaintiff 
by  Hon.  L.  Q.,  a  justice  of  this  court,  whose  findings  are  hereunto 
annexed). 

IJuraf].  [Signature]. 


APPENDIX   OF    FORMS.  1677 


No.  10. 


Notice  of  Application  for  Order  of  Reference  and 
Judgment. 

[Title  of  the  action'\. 

Take  notice,  that  on  all  the  papers  and  proceedings  in  this 
action  and  on  the  affidavits  hereto  annexed,  copies  of  which 
are  herewith  served  upon  you,  the  plaintiff  will  apply  to  this 
court  at  a  term  thereof,  to  be  held  at  the  court  house,  in  the 

city  of  ,  on  the  day  of  ,  19     ,  at  o'clock  in 

the  noon  of  that  day,  or  as  soon  thereafter  as  counsel  can  be 

heard,  for  the  relief  demanded  in  the  complaint ;  and  also  for  an 
order  referring  ths  action  to  some  suitable  person  to  compute  the 
amount  due  to  the  plaintiff  for  principal  and  interest  on  the  bond 
and  mortgage  set  forth  in  the  complaint,  (and  also  to  ascertain 
and  compute  the  amount  due  to  such  of  the  defendants  as  are 
prior  incumbrancers  of  the  mortgaged  premises),  [if  the  whole 
amount  secured  by  the  mortgage  has  not  become  due,  or  if  any  of 
the  defendants  are  infants  or  absentees,  the  notice  of  motion 
should  folloiv  the  language  of  the  order  in  Form  No.  ii^,  and  for 
such  other  and  further  relief  as  may  be  just.' 

Dated  the  day  ,  19     . 

T.  R., 

Plaintiff's  Attorney. 
[Office  and  post-office  address]. 
To.  J.  Z., 

Attorney  for  Defendant,  [name]. 


No.  11. 
Order  of  Reference,  Preliminary  to  Judgment. 

At  a  term,  etc. 

Present:  Hon.  ,  Judge. 

[Title  of  the  action]. 

On  reading  the  complaint  on  file  in  this  action,  and  on  reading 
7  See  ante  §§  524,  525. 


1678  APPENDIX    OF    FORMS. 

and  filing  the  affidavit  of  T.  R.,  the  attorney  for  the  plaintiff,  and 
the  affidavits  of  service  and  the  notices  of  appearance,  from  which 
it  appears  that  this  action  was  brought  to  foreclose  a  mortgage, 
and  that  the  whole  amount  secured  thereby  is  (not)  due:  and  it 
further  appearing  that  the  summons  was  duly  served  on  all  of  the 
defendants  herein,  more  than  twenty  days  since ;  that  the  time 
to  answer  has  expired  as  to  all  of  the  defendants,  and  that  no 
answer  or  demurrer  has  been  received  from  any  of  them,  and  that 
none  of  the  defendants  are  infants  or  absentees,  (or,  that  no 
answer  has  been  served  by  any  defendant,  except  the  usual  gen- 
eral answer  of  the  infant  defendants,  R.  P.  and  D.  P.,  who  have 
appeared  and  answered  by  their  guardian  ad  litem,  and  that  the 
defendant  O.  S.,  is  an  absentee)  ;  and  it  further  appearing  that 
a  notice  of  the  pendency  of  this  action  was  filed  more  than 
twenty  days  since ;  and  on  filing  due  notice  of  this  motion,  with 
due  proof  of  the  service  thereof  on  the  attorneys  for  all  of  the 
defendants  who  have  appeared  herein : 

Now,  on  motion  of  T.  R.,  attorney  for  the  plaintiff,  and  after 
hearing  J.  Z.,  of  counsel  for  the  defendant  C.  D.,  it  is 

Ordered,  that  it  be  referred  to  X.  Y.,  Esq.,  a  counselor  at 
law,  of  ,  to  ascertain  and  compute  the  amount  due  to  the 

plaintiff  for  principal  and  interest  on  the  bond  and  mortgage  set 
forth  in  the  complaint,  (and  also  to  compute  the  amount  due  to 
such  of  the  defendants  as  are  prior  incumbrancers  of  the  mort- 
gaged premises). 

[Where  the  zvhole  amount  secured  by  the  mortgage  has  not 
become  due,  the  order  should  be] :  to  ascertain  and  compute  the 
amount  due  and  yet  to  become  due  on  the  bond  and  mortgage 
set  forth  in  the  complaint,  including  interest  thereon  to  the  date 
of  his  report,  and  also  to  ascertain  and  report  the  situation  of  the 
mortgaged  premises,  and  whether,  in  his  opinion,  the  same  can 
be  sold  in  parcels,  without  prejudice  to  the  interests  of  the  parties ; 
and  if  he  shall  be  of  the  opinion  that  a  sale  of  the  whole  of  said 
premises  in  one  parcel  will  be  most  beneficial  to  the  parties,  then 
that  he  report  the  same  with  his  reasons  for  such  opinion. 

[//  one  of  the  defendants  is  an  infant,  and  has  put  in  a  general 
anszver  by  his  guardian  ad  litem,  or  if  any  of  the  defendants  are 
absentees,  the  order  should  read  in  addition']:  to  take  proof  of  the 
facts  and  circumstances  stated  in  the  complaint,  and  to  examine 
the  plaintiff  or  his  agent  on  oath,  as  to  any  payments  which  have 
been  made,  and  to  ascertain  and  compute  the  amount  due  to  the 
plaintiff  for  principal  and  interest  on  the  bond  and  mortgage  set 
forth  in  the  complaint. 


APPENDIX    OF    FORMS.  1679 

No.   12. 
Subpoena  to  Attend  Before  Referee. 

[Title  of  the  action.'] 

By  virtue  of  an  order  made  and  entered  in  the  above  entitled 
action,  on  the  day  of  ,  19     ,  to  ascertain  and  compute 

the  amount  due  to  the  plaintiff  for  principal  and  interest  on  the 
bond  and  mortgage  set  forth  in  the  complaint  [Or,  insert  the  sub- 
stance of  the  order  of  reference,  follonnng  its  la)igiiage],  I.  X.  Y., 
the  referee  appointed  herein,  do  hereby  summon  you  to  appear 
before  me,  at  my  office,  No.  street,  in  the  city  of  .  on 

the  day  of  ,  19     ,  at  o'clock  in  the  noon,  to 

attend  a  hearing  of  the  matters  in  said  action,  in  reference  before 
me,  as  such  referee,  pursuant  to  said  order.  And  hereof,  fail  not 
at  your  peril. 

Dated  the  day  of         ,  19    .  X.  Y., 

Referee. 


No.  13. 
Oath  of  Referee. 
[Title  of  the  action.'] 
County  of  ,  ss.: 

V 

I,  X.  Y.,  the  referee  named  in  the  order  of  this  court,  made  in 
the   above   entitled  action,   at   a  term   thereof   held   on 

the  day  of  ,  19     ,  by  which  it  was  referred  to  the  under- 

signed referee,  to  ascertain  and  compute  the  amount  due  to  the 
plaintiff  for  principal  and  interest  on  the  bond  and  mortgage  set 
forth  in  the  complaint,  [follozving  the  language  of  the  order], 
being  duly  sworn,  do  depose  and  say : 

That  I  will  faithfully  and  fairly  try  and  determine  the  questions 
referred  to  me,  as  the  case  requires,  and  that  I  will  make  a  just 
and  true  report,  according  to  the  best  of  my  understanding. 

[Jurat]  [Signature]. 


1680  APPENDIX    OF    FORMS. 

No.  14. 
Report  of  Referee,  Preliminary  to  Judgment. 

Whole  Amount  Due.     No  Infants  or  Absentees. 
[Title  of  the  action.'] 

To  the  court  of 

In  pursuance  of  an  order  of  this  court,  made  in  the  above 
entitled  action,  on  the  day  of  ,  19     ,  by  which  it  was 

referred  to  the  undersigned  referee,  to  ascertain  and  compute 
the  amount  due  to  the  plaintiff  on  the  bond  and  mortgage  set 
forth  in  the  complaint  in  this  action,  [following  the  language  of 
the  order.'] 

I,  X.  Y.,  the  referee  in  said  order  named,  do  report,  that,  having 
first  taken  the  referee's  oath  herein  as  required  by  law,  I  have 
computed  and  ascertained  the  amount  due  to  the  plaintiff,  upon 
and  by  virtue  of  the  said  bond  and  mortgage,  and  that  I  find  and 
accordingly  report,  that  there  is  due  to  the  plaintiff  for  principal 
and  interest  on  the  said  bond  and  mortgage  at  the  date  of  this, 
my  report,  the  sum  of  dollars. 

Schedule  "A,"  hereunto  annexed,  shows  a  statement  of  the 
amounts  due  for  principal  and  interest  respectively,  the  periotls  of 
the  computation  of  interest,  and  its  rate. 

Dated  the  day  ,  19. 

[Signature  of  Referee]. 

Schedule  "A." 

Exhibit  No.  1.  Bond  executed  by  C.  D.  to  E.  P.,  dated 
the  day  of  ,  19     ,  to  secure  the  payment  of  the  sum 

of  dollars  and  interest. 

Exhibit  No.  2.  Mortgage  executed  by  C.  D.  and  M.  D.,  his 
wife,  to  E.  P.,  to  secure  the  payment  of  said  bond;  same  date  as 
bond ;  recorded  the  day  of         ,  19     ,  in  the  office  of  the  clerk 

of  the  county  of  ,  in  book  No.  ,  of  mortgages,  at  page     . 

Exhibit  No.  3.  [Insert  in  case  of  assignment].  Assignment 
of  said  bond  and  mortgage  from  E.  P.  to  H.  O.,  dated  the  day 
of  ,   19     ,  and  recorded  in  the  office  of  the  clerk  of  the 

county  of  ,  in  book  Xo.       ,  of  assignments  of  mortgages,  at 

page 


APPENDIX   OF    FORMS.  1681 

Exhibit  No.  4.     Policy  of  insurance   for  dollars   in 

the  fire  insurance  company.     Premium  paid,  dollars. 

Exhibit  No.  5.     Tax  receipts  for  taxes  paid  by  plaintiff  for 

the  year   19     ,   to  the  county    (or  city)    treasurer,   amounting 

to  dollars. 

Principal  sum  on  bond $ 

Interest  thereon  from  to  ,  being        years, 

months  and  days,  at  per  centum  per 

annum    

Amount  paid  by  plaintiff  for  taxes    

Interest  thereon  from        to  this  date,  at        per  centum 

per   annum    

Amount  paid  by  plaintiff  for  insurance 

Interest  thereon  from        to  this  date,  at        per  centum 

per  annum 

Total  amount  due   $ 

Dated  the  day  of         ,  19    . 

[Sigitature  of  Referee^. 


No.  15. 
Report  of  Referee  Preliminary  to  Judgment. 

Whole  Amount  Not  Due.     No  Infants  or  Absentees. 

[Title  of  the  action.'] 

To  the  court  of 

In  pursuance  of  an  order  of  this  court,  made  in  the  above 
entitled  action,  on  the  day  of  ,  19     ,  by  which  it  was 

referred  to  the  undersigned  referee,  to  ascertain  and  compute  the 
amount  due,  and  yet  to  become  due,  to  the  plaintiff  on  the  bond 
and  mortgage  set  forth  in  the  complaint,  which  is  filed  in  this 
action,  including  interest  thereon  to  the  date  of  this  report ;  and 
also  to  ascertain  and  report  the  situation  of  the  mortgaged 
premises,  and  whether,  in  his  opinion,  the  same  could  be  sold  in 
parcels,  without  injury  to  the  interests  of  the  parties,  and  if  he 
should  be  of  the  opinion  that  a  sale  of  said  premises  in  one  parcel 
MortR.  Vol.  II.— 106. 


1682  APPENDIX    OF    FORMS. 

would  be  most  beneficial  to  the  parties,  to  report  his  reasons  for 
such  opinion, 

I,  X.  Y.,  the  referee  in  said  order  named,  after  having  first 
taken  the  referee's  oath  herein  as  required  by  law,  do  report : 

That  I  have  ascertained  and  computed  the  amount  due  to  the 
plaintiflF  upon  and  by  virtue  of  the  said  bond  and  mortgage,  and 
that  the  amount  so  due,  with  interest  to  the  date  of  this  report, 
is  the  sum  of  dollars. 

That  I  have  also  ascertained  and  computed  the  amount  yet  to 
become  due  to  the  plaintiff  upon  said  bond  and  mortgage,  and 
that  the  amount  which  is  not  yet  due,  but  which  will  hereafter 
become  due  thereon,  including  interest  to  the  date  of  this  report, 
is  the  sum  of  dollars. 

That  the  whole  amount  secured  by  the  said  bond  and  mortgage 
and  still  remaining  unpaid,  including  interest  thereon  to  the  date 
of  this  report,  is  the  sum  of  dollars. 

Schedule  "A,"  hereunto  annexed,  shows  a  statement  of  the 
amounts  of  principal  due,  and  yet  to  become  due,  respectively ;  the 
amounts  of  interest  thereon,  the  periods  of  computation  of 
interest,  and  its  rate. 

I  do  further  certify  and  report  that  I  have  ascertained  the 
situation  of  the  mortgaged  premises,  and  am  of  the  opinion  that 
the  same  cannot,  (or  can)  be  sold  in  parcels,  without  injury  to 
the  interest  of  the  parties ;  that  my  reasons  for  such  opinion  are 
as  follows:  [Here  state  the  reasons  for  such  opinion}. 

The  testimony  upon  which  I  have  formed  said  opinion  is  hereto 
annexed,  and  forms  a  part  of  this  report. 

Dated  the  day  of  ,  19     . 

[Signature  of  Referee] . 
Schedule  "A." 

[Set  out  the  bond  and  mortgage  and  the  other  papers  used  as 
exhibits  on  the  reference,  as  in  the  preceding  form,  and  continue 
as  fallows'] : 

Principal  sum  now  due $ 

Interest  thereon   from  to  ,  being         years, 

months  and      days,  at      per  centum  per  annum, 

Amount   due    $ 

Principal  sum  secured  by  said  bond  and  mortgage,  but 
not  yet  due  $ 


APPENDIX    OF    FORMS.  1683 

Interest  thereon   from  to  ,  being         years, 

months  and      days,  at      per  centum  per  annum, 


Amount  to  become  due $ 

Amount  due,  as  above  $ 

Amount  to  become  due,  as  above 


Total  amount  of  plaintiff's  claim  at  this  date..  .$ 
Dated  the  day  of  ,  19    . 

[Signature  of  Referee}. 


No.  16. 

Report  of  Referee  Preliminary  to  Judgment. 

Whole   Amount   Due.    Infants   or   Absentees. 
[Title  of  the  action.'] 

To  the  court  of  : 

In  pursuance  of  an  order  of  this  court,  made  in  the  above 
entitled  action,  on  the  day  of  ,  19     ,  by  which  it  was 

referred  to  the  undersigned  referee,  to  take  proof  of  the  facts 
and  circumstances  stated  in  the  complaint,  and  to  examine  the 
plaintiff  or  his  agent  on  oath,  as  to  any  payments  which  have 
been  made,  and  to  ascertain  and  compute  the  amount  due  to  the 
plaintiff  for  principal  and  interest  on  the  bond  and  mortgage  set 
forth  in  the  complaint, 

I.  X.  Y.,  the  referee  in  said  order  named,  do  certify  and  report,, 
that  after  having  first  taken  the  referee's  oath  herein,  as  required 
by  law,  I  took  proof  of  the  facts  and  circumstances  stated  in  the 
complaint,  and  examined  the  plaintiff  (or  U.  R.,  his  agent),  on 
oath  as  to  any  payments  which  have  been  made,  and  that  I  am  of 
the  opinion,  and  accordingly  do  report,  that  the  facts  and  circum- 
stances stated  in  said  complaint  are  true,  and  that  no  payments 
have  been  made  on  said  bond  and  mortgage,  except  such  as  are 
duly  credited  in  the  said  complaint. 

The  said  examination  of  the  plaintiff,  (or  of  U.  R.,  the  said 
agent  of  the  plaintiff"),  and  the  proofs  taken  by  me  of  the  facts 
and  circumstances  stated  in  the  complaint,  except  such  of  said 
proofs  as  were  documentary,  are  annexed  to  this  report. 


1684  APPENDIX    OF    FORMS, 

And  I  do  further  certify  and  report,  that  I  have  ascertained 
and  computed  the  amount  due  to  the  plaintiff  for  principal 
and  interest  on  the  bond  and  mortgage  set  forth  in  the  complaint, 
and  that  I  find  and  accordingly  do  report,  that  there  is  due  to 
the  plaintiff  for  principal  and  interest  on  the  said  bond  and 
mortgage,  at  the  date  of  this  my  report,  the  sum  of  dollars. 

Schedule  "A,"  hereto  annexed,  shows  a  statement  of  the 
amounts  due  for  principal  and  interest  respectively,  the  periods  of 
the  computation  of  the  interest,  and  its  rate. 

Dated  the  day  of  ,  19     . 

[Signature  of  Referee'] . 
Schedule  "A," 

^Insert  Schedule  "A,"  as  in  the  preceding  form."] 


No.  17, 
Judgment  of  Foreclosure  and  Sale. 

Whole  Amount   Due. 

At  a  term,  etc. 

Present :  Hon,  ,  Judge. 

'[Title  of  the  action"]. 

On  reading  and  filing  the  affidavits  of  service  of  the  summons 
herein,  and  the  notices  of  appearance,  showing  the  due  service  of 
the  summons  on  all  of  the  defendants  in  this  action,  and  the  affi- 
davit of  T.  R.,  attorney  for  the  plaintiff,  showing  that  none  of  the 
defendants  are  infants  or  absentees  (or,  that  none  of  the  defend- 
ants are  infants  excepting  the  defendant  R,  P,,  and  that  none  of 
the  defendants  are  absentees  excepting  the  defendant  O.  S,,  who 
has  been  duly  served  with  the  summons  by  the  publication 
thereof  pursuant  to  an  order  of  this  court),  and  that  the  time  to 
answer  has  expired  as  to  all  of  the  defendants,  and  that  no 
answer  or  demurrer  has  been  put  in  by  any  of  the  defendants 
(excepting  the  general  answer  of  the  defendant  R,  P,,  who  is  an 
infant,  and  whose  answer  by  his  guardian  ad  litem  does  not  con- 
trovert any  of  the  allegations  of  the  complaint,  and  excepting 
also  the  answer  of  the  defendant  C,  D.,  the  issues  raised  by 
which  have  been  duly  tried  at  a  term  of  this  court,  before 

Hon,  ,  one  of  the  Justices  thereof,  and  a  decision  there- 

in rendered  for  the  plaintiff  and  duly  filed)  [//  computation  is  by 
the  court  on  the  trial  of  the  issues],  (and  the  court  on  such 
trial  having  ascertained  and  computed  the  amount  due  to  the 
plaintiff  for  principal  and  interest  on  the  bond  and  mortgage  set 


APPENDIX    OF    FORMS.  1685 

forth  in  the  complaint  to  be  the  sum  of  dollars,  and  interest 

thereon  from  the       day  of  ,  19     ,  the  date  when  said  compu- 

tation was  made)  ;  and  on  reading  and  filing  the  report  of  X.  Y., 
Esq.,  to  whom  it  was  referred,  to  ascertain  and  compute  the 
amount  due  to  the  plaintiff,  for  principal  and  interest  on  the 
bond  and  mortgage  set  forth  in  the  complaint  (and  to  such  of 
the  defendants,  as  are  prior  incumbrancers  of  the  mortgaged 
premises),  [//  any  of  the  defendants  are  infants  or  absentees, 
continue  in  the  language  of  the  order  of  reference ;  and  to  take 
proof  of  the  facts  and  circumstances  stated  in  the  complaint, 
and  to  examine  the  plaintiff,  or  his  agent,  on  oath,  as  to  any  pay- 
ments which  have  been  made],  by  which  report,  bearing  date  the 
day  of  ,   19     ,  it  appears    [m  the  case  of  infants  or 

absentees'],  that  the  facts  and  circumstances  stated  in  said  com- 
plaint, are  true,  and  that  no  payments  have  been  made,  except 
such  as  are  duly  credited  in  the  said  complaint,  and  that  the  sum 
of  dollars  was  due  thereon,  at  the  date  of  said  report ;  and 

on  reading  and  filing  due  proof  that  notice  of  the  pendency  of 
this  action  was  filed  in  the  office  of  the  clerk  of  the  county  of  , 

on  the  day  of  ,  19     . 

Now,  on  motion  of  T.  R.,  attorney  for  the  plaintiff,  no  one 
appearing  in  opposition  {or,  after  hearing  J.  Z.,  attorney  for 
the  defendant  C.  D.,  in  opposition  thereto),  it  is 

Ordered,  that  the  said  report  be,  and  the  same  hereby  is,  in  all 
things  confirmed ;  and,  on  like  motion  as  aforesaid,  it  is  ad- 
judged, that  the  mortgaged  premises,  described  in  the  com- 
plaint in  this  action,  as  hereinafter  set  forth,  or  so  much  thereof 
as  may  be  sufficient  to  raise  the  amount  due  to  the  plaintiff  for 
principal,  interest  and  costs,  and  which  may  be  sold  separately, 
without  material  injury  to  the  parties  interested,  be  sold  at  pub- 
lic auction,  in  the  county  of  ,  by  and  under  the  direction 
of  J.  R.,  Esq.,  of  the  city  of  ,  counselor  at  law,  who  is 
hereby  appointed  a  referee  for  that  purpose,  {or  by,  and  under, 
the  direction  of  the  sheriff  of  said  county)  ;  that  the  said  referee 
give  public  notice  of  the  time  and  place  of  such  sale,  according 
to  law  and  the  practice  of  this  court ;  that  either,  or  any,  of  the 
parties  to  this  action,  may  purchase  at  such  sale;  that  the  said 
referee  execute  to  the  purchaser,  or  purchasers,  a  deed,  or  deeds, 
of  the  premises  sold ;  that  out  of  the  moneys  arising  from  such 
sale,  after  deducting  the  amount  of  the  fees  and  expenses  on  such 
sale,  and  any  lien,  or  liens,  upon  said  premises  so  sold  for  taxes, 
assessments  or  water  rates,  at  the  time  of  such  sale,  and  the 
:*mount  necessary  to  redeem  the  property  sold,   from  any  lien> 


1686  APPENDIX    OF    FORMS. 

for  unpaid  taxes,  assessments  or  water  rates,  which  have  not  ap- 
parently become  absolute,  the  said  referee  pay  to  the  plaintiff,  or 
to  his  attorney,  the  sum  of  dollars,  adjudged  to  the  plain- 

tiff for  costs  and  disbursements  in  this  action,  with  interest  there- 
on, from  the  date  hereof;  that  he  pay  to  M.  N.,  guardian  ad 
litem  for  said  infant  defendant,  R.  P.,  the  sum  of  dollars, 

as  an  allowance  of  costs,  and  that  he  also  pay  to  the  plaintiff,  or 
to  his  attorney,  the  amount  so  reported  due  to  him,  as  aforesaid, 
together  with  the  legal  interest  thereon,  from  the  date  of  said 
report,  or  so  much  thereof,  as  the  purchase  money  of  the  mort- 
gaged premises  will  pay  of  the  same,  and  that  he  take  a  receipt 
therefor,  and  file  it  with  his  report  of  sale;  that  he  pay  over 
the  surplus  money,  if  any  there  should  be,  arising  from  the  said 
sale,  to  the  treasurer  of  said  county  of  ,  (or,  if  the  prop- 

erty is  situated  in  the  city  of  New  York,  to  the  chamberlain) , 
within  five  days  after  the  same  is  received  and  ascertainable, 
subject  to  the  order  of  this  court:  that  he  make  a  report  of  such 
sale,  and  file  it  with  the  clerk  of  this  court,  with  all  convenient 
speed ;  that  if  the  proceeds  of  such  sale  are  insufficient  to  pay 
the  amount  so  reported  due  to  the  plaintiff,  with  the  interest  and 
costs,  as  aforesaid,  then  that  the  said  referee  specify  the  amount 
of  such  deficiency  in  his  report  of  sale,  and  that  the  defendants, 
C  D.,  J.  H.  and  H.  O.,  pay  to  the  plaintiff  the  residue  of  the  debt 
remaining  unsatisfied,  after  a  sale  of  the  mortgaged  property, 
and  the  application  of  the  proceeds  thereof,  pursuant  to  the  di- 
rections contained  herein,  and  that  the  plaintiff  have  execution 
therefor,  and  that  the  purchaser,  or  purchasers,  at  such  sale,  be 
let  into  possession  on  production  of  the  referee's  deed. 

And  it  is  further  adjudged,  that  the  defendants,  and  all  per- 
sons claiming  under  them,  or  any  or  either  of  them,  after  the 
filing  of  the  said  notice  of  the  pendency  of  this  action,  be  forever 
barred  and  foreclosed  of  all  right,  title,  interest  and  equity  of 
redemption,  in  the  said  mortgaged  premises,  so  sold,  and  in  every 
part  thereof. 

The  following  is  a  description  of  the  mortgaged  premises, 
hereinbefore  mentioned  :  [Insert  description  of  the  premises  as 
contained  in  the  mortgage  and  the  complaint']. 


APPENDIX   OF   FORMS.  1687 

No.   18. 
Judgment  of  Foreclosure  and  Sale. 

Part  only  Due — Premises  Sold  in  One  Parcel.     (As  in  Preceding  Form 
No.   17,  to  *  and  Continue). 

To  ascertain  and  compute  the  amount  due,  and  yet  to  become 
due,  to  the  plaintiff,  on  the  bond  and  mortgage  set  forth  in  the 
complaint,  including  the  interest  thereon,  to  the  date  of  his  re- 
port, and  also,  to  ascertain  the  situation  of  the  mortgaged  prem- 
ises, and  whether  the  same  can  be  sold  without  prejudice  to  the 
interests  of  the  parties,  by  which  report,  bearing  date  the 
day  of  ,  19     ,  it  appears  that  the  amount  due  to  the  plain- 

tiff, with  interest,  to  the  date  of  said  report,  is  the  sum  of 
dollars,  and  that  the  amount  which  is  not  yet  due  to  the  plaintiff, 
but  which  will  hereafter  become  due  to  him,  on  said  bond  and 
mortgage,  including  interest  thereon,  to  the  date  of  said  report, 
is  the  sum  of  dollars,  and,  that  the  whole  amount  secured 

by  said  bond  and  mortgage,  and  still  remaining  unpaid,  including 
interest  thereon,  to  the  date  of  said  report,  is  the  sum  of 
dollars,  and  that  the  said  mortgaged  premises  can  not  be  sold  in 
separate  parcels,  without  injury  to  the  interests  of  the  parties, 
for  the  reason  that  [insert  reason  as  contained  in  the  referee's 
report] . 

Now  on  motion  of  T.  R.,  attorney  for  the  plaintiff,  and  after 
hearing  J.  Z.,  attorney  for  the  defendant,  C.  D.,  in  opposition 
thereto,  it  is 

Ordered,  [Continue  as  in  preceding  Form  No.  i7,  except  that 
the  direction  to  pay  the  "amount  due,"  should  be  changed  to  a 
similar  direction']  pay  to  the  plaintiff,  or  his  attorney,  the  whole 
amount  so  reported  to  be  secured  by  the  said  bond  and  mort- 
gage, and  still  remaining  unpaid,  together  with  the  legal  interest. 

And  it  is  further  adjudged,  that  in  case  the  amount  reported  as 
actually  due  to  the  plaintiff,  with  interest,  and  the  costs  of  this 
action,  shall  be  paid  before  such  sale,  the  plaintiff  shall  be  at  lib- 
erty at  any  time  hereafter,  when  any  of  the  principal  sum  or  inter- 
est, secured  by  said  bond  and  mortgage,  shall  become  due,  to 
apply  to  the  aforesaid  referee,  who  is  hereby  continued  a  referee 
for  that  purpose,  under,  and  in  pursuance  of,  this  judgment, 
and  obtain  a  report  of  the  amount  which  shall  then  be  due ;  to  the 
end,  that  upon  the  coming  in  and  confirmation  of  such  report. 


1688  APPENDIX    OF    FORMS. 

a  judgment  may  be  made  for  a  sale  of  the  said  premises,  to  sat- 
isfy the  amount  which  shall  then  be  due,  with  interest,  and  the 
costs  of  such  report  and  sale. 

And  it  is  further  adjudged,  that,  in  case  the  said  premises 
shall  be  sold  under  this  judgment,  and  shall  not  produce  suffi- 
cient to  satisfy  the  amount  so  reported  as  being  secured  by  the 
said  bond  and  mortgage,  and  still  remaining  unpaid,  with  in- 
terest, and  the  costs  of  this  action  and  of  such  sale,  the  plaintiff 
may,  at  any  time  thereafter,  when  any  future  installment  of 
principal  or  interest  on  said  bond  and  mortgage  shall  become 
due,  apply  to  this  court,  for  an  execution  against  the  said  defend- 
ant C.  D.,  who  is  personally  liable  for  the  payment  of  the  debt 
secured  by  the  said  mortgage,  for  the  amount  which  shall  then 
be  due,  with  interest,  and  the  costs  of  such  application. 

The  following  is  a  description  of  the  mortgaged  premises  here- 
inbefore mentioned:      [Insert   description^. 


No.  19. 
Judgment  of  Foreclosure  and  Sale. 

Part  Only  Due — Premises  to  be  Sold  in  Separate  Parcels. 

[As  in  preceding  Form  No.  18,  except  that  the  opinion  of  the 
referee  to  the  effect,  that  the  premises  can  he  sold  in  parcels  with- 
out injury  to  the  interests  of  the  parties,  should  he  stated  ac- 
cording to  the  facts.  The  addition  to  Form  No.  i7,  immediately 
hefore  the  description  should  he  as  fallows']  : 

And  it  is  further  adjudged,  that  the  plaintiff  be  at  liberty,  at 
any  time  hereafter,  as  any  installment  of  principal  or  interest, 
secured  by  said  bond  and  mortgage,  shall  become  due,  to  apply 
to  the  aforesaid  referee,  who  is  hereby  continued  a  referee  for 
that  purpose,  under,  and  in  pursuance  of  this  judgment,  and 
to  obtain  a  report  as  to  the  amount  which  shall  then  be  due  to  the 
plaintiff,  to  the  end  that,  upon  the  coming  in  and  confirmation  of 
such  report,  and  order  may  be  made  for  a  sale  of  the  residue  of 
said  premises,  not  sold  under  this  judgment,  to  satisfy  the  amount 
which  shall  then  be  due,  with  interest,  and  the  costs  of  such 
report  and  sale. 

And  it  is  further  adjudged,  that  in  case  the  said  premises  shall 
be   sold  under   this   judgment,   and    shall   not   produce   sufficient 


APPENDIX    OF    FORMS.  1689 

to  satisfy  the  amount  so  reported  as  secured  by  the  said  bond 
and  mortgage,  and  still  remaining  unpaid,  with  interest,  and  the 
costs  of  this  action,  and  of  such  sale,  the  plaintiff  may,  at  any 
time  thereafter,  when  any  future  installment  of  principal  or 
interest,  on  said  bond  and  mortgage,  shall  become  due,  apply  to 
this  court  for  an  execution  against  the  said  defendants,  C.  D., 
J.  H.  and  H.  O.,  who  are  personally  liable  for  the  payment  of  the 
debt  secured  by  the  said  bond  and  mortgage,  for  the  amount 
which  shall  then  be  due,  with  interest,  and  the  costs  of  such 
application. 

The  following  is  a  description  of  the  mortgaged  premises,  here- 
inbefore mentioned  and  specified,  and  the  order  in  which  the 
said  several  parcels  thereof  are  to  be  sold  separately,  to  wit : 

I.  The  lot  or  parcel,  to  be  sold  first,  is  bounded  as  follows : 
[Insert  descriptioii]. 

II,  The  lot  or  parcel,  to  be  sold  next  or  second,  is  bounded 
as  follows:  [Itisert  description]. 


No.  20. 
Judgment  of  Foreclosure  and  Sale. 

Direction  to  be  Inserted  in  Judgment  for  a  Sale  of  Separate  Parcels  in 
the  Inverse  Order  of  Alienation. 

[Insert  at  the  end  of  the  judgment,  immediately  before  the  de- 
scription'] : 

And  it  is  further  adjudged,  that  the  said  referee  summon 
before  him  all  of  the  parties  who  have  appeared  in  this  action, 
and  that  he  take  proof  of  the  order  and  manner  of  alienation  of 
the  mortgaged  premises,  and  that  if  it  shall  appear  to  the  said 
referee,  that  separate  parcels  of  the  said  mortgaged  premises 
have  been  conveyed  or  incumbered  by  the  said  mortgagor,  or  by 
those  claiming  under  him,  subsequently  to  the  lien  of  the  plain- 
tiff's mortgage,  the  said  referee  shall  sell  the  mortgaged  premises 
in  parcels,  in  the  inverse  order  of  their  alienation,  according  to 
the  equitable  rights  of  the  parties  who  are  subsequent  grantees 
or  incumbrancers,  as  such  rights  shall  be  made  to  appear  to  said 
referee. 


1690  APPENDIX   OF    FORMS. 

No.  21. 
Judgment  of  Foreclosure  and  Sale. 

Provision  to  be  Inserted  in  Judgment  for  Sale,  When  One  of  the 
Defendants  is  Merely  a  Surety. 

And  it  is  further  adjudged,  that  if  the  plaintiff  is  not  able  to 
collect  the  amount  of  such  deficiency  out  of  the  estate  of  the  said 
[naming  mortgagor^,  upon  the  issuing  of  an  execution  against  his 
property,  to  the  sheriff  of  the  county  in  which  he  resides,  or  of 
the  county  where  he  last  resided  in  this  state,  the  defendants, 
[naming  the  sureties'],  upon  the  return  of  such  execution  unsatis- 
fied, pay  so  much  of  such  deficiency,  as  the  proceeds  of  the  sale 
hereinbefore  directed,  and  the  amount,  if  any,  which  shall  have 
been  collected  of  the  said  [naming  mortgagor'],  personally,  (sub- 
sequent to  the  assignment  by  said  sureties  to  the  plaintiff), 
exclusive  of  the  costs  and  expenses  of  the  foreclosure  and  sale, 
shall  be  less  than  the  principal  {or  other  limit  of  sureties'  liabil- 
ity), and  the  interest  thereon,  from  the  time  of  the  commencement 
of  this  action,  to  the  time  of  such  sale,  with  the  interest  on  that 
part  of  the  deficiency,  from  the  time  of  the  said  sale,  until  it  shall 
be  so  paid  by  them. 

And  it  is  further  adjudged,  that  if  they  pay  the  amount  thus 
decreed  against  them  personally,  or  if  the  same  is  collected  out 
of  their  property,  they  shall  have  the  benefit  of  this  judgment, 
against  the  said  [naming  mortgagor],  for  the  purpose  of  enabling 
them  to  obtain  remuneration  from  him,  to  the  same  extent  with 
interest,  but  no  further,  either  by  a  new  execution  against  his 
property,  or  by  bringing  an  action  thereon,  as  they  may  think 
proper. 


No.  22. 

Notice  of  Sale  Under  Judgment. 

[Title  of  the  action]. 

In  pursuance  of  a  judgment  of  foreclosure  and  sale,  made  and 
entered  in  the  above  entitled  action,  bearing  date  the  day 


APPENDIX    OF    FORMS.  1691 

of         ,  19     ,  and  entered  in  the  county  clerk's  office  on 

the  day  of  ,  19     ,  I,  the  undersigned  referee,  in  said 

judgment  named,  (or  the  sheriff  of  the  county  of  ),  will  sell 

at    public    auction,    at    the  ,    in    the    city    of         ,    county 

of  ,   and  state  of  ,  on  the  day  of  ,   19     , 

at        o'clock  in  the        noon  of  that  day,  the  following  described 
premises:   [Insert  description]. 
Dated  the  day  of        ,  19    . 

J.R., 
T.  R.,  Referee  {or  Sheriff). 

Plaintiff's  Attorney. 


No.  23. 

Terms  of  Sale. 
[Title  of  the  action]. 

The  premises  described  in  the  annexed  notice  of  sale,  will  be 
sold  under  the  direction  of  J.  R.,  referee  (or  sheriff  of  the 
county  of  ) ,  upon  the  following  terms  : 

I.  Ten  per  centum  of  the  purchase  money  of  the  said  prem- 
ises will  be  required  to  be  paid  to  the  said  referee  (or  sheriff),  at 
the  time  and  place  of  sale,  for  which  the  referee's  (or  sheriff's) 
receipt  will  be  given. 

II.  The  balance  of  said  purchase  money  will  be  required  to 
be  paid  to  said  referee  (or  sheriff),  at  his  office.  No.  ,  in  the 
city  of  ,  on  the  day  of  ,  19  ,  at  which  time  the 
said  referee's  (or  sheriff's)  deed,  will  be  ready  for  delivery. 

III.  The  referee  (or  sheriff),  is  not  required  to  send  any  notice 
to  the  purchaser;  and  if  he  neglects  to  call  at  the  time  and  place 
above  specified,  to  receive  his  deed,  he  will  be  charged  with 
interest  thereafter,  on  the  whole  amount  of  his  purchase,  unless 
the  referee  (or  sheriff),  shall  deem  it  proper  to  extend  the  time 
for  the  completion  of  said  purchase. 

IV.  All  taxes,  assessments  and  water  rates  upon  said  premises, 
will  be  allowed  by  the  referee  (or  sheriff),  out  of  the  purchase 
money,  provided  the  purchaser  shall,  previously  to  the  delivery  of 
the  deed,  produce  to  the  referee  (or  sheriff),  proof  of  such  liens 
and  duplicate  receipts  of  the  payment  thereof. 

V.  The  purchaser  of  said  premises,  or  of  any  portion  thereof, 


1692  APPENDIX    OF    FORMS. 

will,  at  the  time  and  place  of  the  sale,  sign  a  memorandum  of  his 
purchase,  and  pay,  in  addition  to  the  purchase  money,  the  auc- 
tioneer's fee  of  ten  dollars,  for  each  parcel  separately  sold. 

VI.  The  biddings  will  be  kept  open,  after  the  property  is 
struck  off,  and,  in  case  any  purchaser  shall  fail  to  comply  with 
any  of  the  above  conditions  of  sale,  the  premises  so  struck  down 
to  him,  will  be  again  put  up  for  sale  under  the  direction  of 
said  referee  (or  sheriff)  under  these  same  terms  of  sale,  without 
application  to  the  court,  unless  the  plaintiff's  attorney  shall  elect 
to  make  such  application ;  and  such  purchaser  will  be  held  liable 
for  any  deficiency  that  may  exist  between  the  sum  for  which  said 
premises  were  struck  off  upon  the  sale,  and  that  for  which  they 
may  be  sold  on  the  resale,  and  also  for  all  costs  and  expenses 
occurring  on  such  resale. 

VII.  [//  there  is  a  prior  incumbrance].  The  said  premises 
will  be  sold  subject,  however,  to  a  mortgage  for  dollars, 
and  interest  thereon,  from  the  day  of  ,  19  ,  and  subject  to 
Idescribing  any  other  incumbrances']. 

J.  R., 

Referee  {or  Sheriff). 

Memorandum  of  Sale. 
I,  M.  N.,  have  this  day  of  ,  19     ,  purchased  the  prem- 

ises described  in  the  annexed  printed  notice  of  sale,  for  the  sum 
of  dollars,  and  I  hereby  promise  and  agree  to  comply  with 

the  terms  and  conditions  of  sale  of  said  premises,  as  above 
mentioned  and  set  forth. 

Dated  19    .  M.  N., 

Purchaser. 
Receipt. 

$ 

Received  from  M.  N.,  the  sum  of  dollars,  being  ten  per 

centum  of  the  amount  bid  by  him,  for  the  property  sold  by  me, 
under  the  judgment  in  the  above  entitled  action,  and  pursuant  to 
the  foregoing  terms  of  sale. 

Dated  19     . 

J.  R., 

Referee  {or  Sheriff). 


APPENDIX    OF    FORMS.  1693 

No.  24. 

Affidavit  of  Posting  Notice  of  Sale. 

[Title  of  the  action']. 

CouiN*rY  OF  ,  ss.: 

,  being  duly  sworn,  says  that  he  is  more  than  21  years  of 
age,  and  resides  at       ;  that  on  the  day  of  ,  19     ,  he 

posted,  and  conspicuously  fastened  up,  a  printed  notice  of  sale, 
of  which  the  prefixed  notice  is  a  copy,  in  three  public  places,  in 
the  city  of  ,  in  said  county  of  ,  as  follows :  one  notice  on 

the  outer  door  of  the  court  house  in  said  city ;  one  notice  on  the 
bulletin  board  at  ;  one  notice  in  the  post-office  at  ;  that 

said  city  of  ,  is  the  place  where  said  sale  is  to  take  place, 

as  mentioned  in  said  notice ;  and  that  the  day  of  ,  19     , 

it  at  least  forty-two  days  before  the  day  of  sale,  mentioned  in 
said  notice. 

Deponent  further  says,  that  on  the  said  day  of  ,  19     , 

he  also  posted,  and  conspicuously  fastened  up,  said  printed  notice 
of  sale  in  three  public  places,  in  the  town  of  ,  in  said  county 

of  ,  as  follows :  one  notice  of  sale  in  the  store  of  ;  one 

notice  in  the  post-office  of  said  town  ;  one  notice  in  the  hotel ; 

that  said  town  of  ,  is  the  town  where  the  property  described 

in  said  notice,  is  situated;  and  that  said  day  of  ,  19     , 

is  at  least  forty-two  days  before  the  day  of  sale  mentioned  in 
said  notice. 

[Jurat.] 


No.  25. 

Referee's  Report  of  Sale. 

[Title  of  the  action]. 

To  the  court  of  : 

In  pursuance  and  by  virtue  of  a  judgment  of  this  court,  granted 
in  the  above  entitled  action,  at  a  term  thereof,  held  at  , 

on  the  day  of  ,  19     ,  and  heretofore  duly  entered,  by 

which  it  was,  among  other  things,  ordered  and  adjudged,  that  all 
and  singular  the  mortgaged  premises  mentioned  in  the  complaint 


1694  APPENDIX   OF    FORMS. 

in  this  action,  and  hereinafter  described,  or  so  much  thereof  as 
might  be  sufficient  to  discharge  the  mortgage  debt,  the  expenses 
of  the  sale  and  the  costs  of  the  action,  and  which  might  be  sold 
separately  without  material  injury  to  the  parties  interested,  be 
sold  at  public  auction,  in  the  county  of  ,  by  or  under  the 

direction  of  the  undersigned  referee  (or  sheriff)  ;  that  the  referee 
(or  sherifif)  give  public  notice  of  the  time  and  place  of  such  sale, 
according  to  law  and  the  rules  and  practice  of  this  court ;  that 
the  plaintiff,  or  any  of  the  parties  to  this  action,  might  become  a 
purchaser  on  such  sale;  that  the  referee  execute  a  deed  to 
the  purchaser  of  the  mortgaged  premises  so  sold ;  that  said 
referee  pay  all  taxes,  assessments  and  water  rates,  which  are  liens 
upon  the  property  sold,  and  the  amount  necessary  to  redeem  the 
property  sold  from  any  sales  for  unpaid  taxes,  assessments  or 
water  rates  which  have  not  apparently  become  absolute ;  that  said 
referee  pay  to  the  said  plaintiff,  or  his  attorney,  out  of  the 
proceeds  of  the  sale,  dollars,  his  costs  and  charges  in  this  ac- 
tion as  adjusted,  with  interest  from  the  date  of  said  judgment, 
and  also  the  amount  reported  due  to  the  plaintiff,  together  with 
the  legal  interest  thereon  from  the  date  of  the  referee's  report, 
or  so  much  thereof  as  the  purchase  money  of  the  mortgaged 
premises  would  pay;  that  the  referee  take  the  plaintiff's  receipt 
therefor  and  file  the  same  with  his  report;  that  he  pay  the  sur- 
plus moneys  arising  from  said  sale,  if  any  there  should  be,  into 
court,  to  the  treasurer  of  the  county  of  ,  (or,  to  the  chamber- 

lain of  the  city  of  New  York),  within  five  days  after  the  same 
should  be  received  and  ascertainable,  for  the  use  of  the  person 
or  persons  entitled  thereto,  subject  to  the  further  order  of  this 
court ;  and  that  if  the  moneys  arising  from  said  sale  should  be 
insufficient  to  pay  the  amount  so  reported  due  to  the  plaintiff, 
with  the  interest,  costs,  taxes  and  expenses  aforesaid,  the  said 
referee  (or  sheriff),  specify  the  amount  of  such  deficiency  in  his 
report  of  sale, 

I,  the  undersigned,  J.  R.,  the  referee  (or  sheriff)  named  in  said 
judgment,  do  respectfully  certify  and  report  such  sale  and  pro- 
ceedings as  follows : 

That,  having  been  charged  by  the  attorney  for  the  plaintiff 
with  the  execution  of  said  judgment,  I  advertised  said  premises 
to  be  sold  by  me,  at  public  auction,  at  ,  in  the  town  (or  city) 

of  ,  in  the  county  of  ,  on  the  day  of  ,  19     , 

at  o'clock  in  the  noon  ;  that  previous  to  said  sale,  I  caused 
notice  thereof  to  be  publicly  advertised  for  weeks  successively, 
as  follows,  to  wit :  by  causing  a  printed  notice  thereof  to  be 


APPENDIX    OF    FORMS.  1695 

fastened  upon  three  public  and  conspicuous  places  in       the  , 

where  the  said  premises  were  to  be  sold,  and  also  in  three  public 
and  conspicuous  places  in  the  ,  where  the  said  mortgaged 

premises  are  situated,  at  least  days  before  the  sale,  and  also 

by  causing  a  copy  of  such  notice  to  be  published  once  in  each 
week  during  the  weeks  immediately  preceding  such  sale,  in 

a  public  newspaper  printed  in  said  county  of  ,  to  wit : 

the  ,  published  at  ,  in  said  county,  which  notice 

contained  the  same  description  of  said  mortgaged  premises  as  did 
said  judgment. 

And  I  do  further  report,  that  on  the  day  of  ,  19     , 

the  day  on  which  said  premises  were  so  advertised  to  be  sold  as 
aforesaid,  I  personally  attended,  at  the  time  and  place  fixed  for 
said  sale,  and  exposed  said  premises  for  sale  at  public  auction  to 
the  highest  bidder,  and  that  the  said  premises  were  then  and 
there  fairly  struck  off  to  ,  for  the  sum  of  dollars,  he 

being  the  highest  bidder  therefor  and  that  being  the  highest  sum 
bidden  for  the  same. 

And  I  do  further  report  that  I  have  executed,  acknowledged 
and  delivered  to  the  said  purchaser,  the  usual  referee's  (or 
sheriff's)  deed  for  said  premises,  and  have  paid  over  or  disposed 
of  the  purchase  money,  or  the  proceeds  of  said  sale,  as  follows, 
to  wit :  I  have  paid  to  the  attorney  for  the  plaintiff  the  sum  of 
dollars,  being  the  amount  of  his  costs  of  this  suit,  as  ad- 
justed, with  interest,  and  have  taken  his  receipt  therefor,  which 
is  hereto  annexed. 

I  have  also  retained  in  my  hands  the  sum  of  dollars,  being 
the  amount  of  my  fees  and  disbursements  on  said  sale,  including 
the  expense  for  publishing  the  notice  of  sale. 

I  have  paid  to  the  plaintiff  (or  his  attorney)  the  sum  of 
dollars,  adjudged  to  him,  and  have  taken  his  receipt  therefor, 
which  is  hereto  annexed. 

I  have  paid  to  the  county  treasurer  of  county,  for  the  use 
of  the  person  or  persons  entitled  thereto,  the  sum  of  dollars, 
the  surplus  herein,  and  have  taken  his  receipt  therefor,  which  is 
hereto  annexed. 

I  have  paid  for  city  taxes    $ 

For  county  taxes    

For  printing  and  posting  the  notice  of  sale 

For  all  of  which  receipts  are  hereto  annexed. 
I  have  retained  for  my  fees  and  commissions 

Total    $ 


1696  APPENDIX    OF    FORMS. 

[Ill  case  of  deficiency,  instead  of  the  clause  for  the  surplus 
insert] : 

And  I  do  further  report  that  after  such  sale  herein,  and  the  dis- 
posal of  the  proceeds  thereof,  as  above  provided,  the  amount  of 
the  deficiency  is  the  sum  of  dollars,  with  interest  thereon 

from  the  date  of  this  report. 

And  I  do  further  report  that  the  premises  so  sold  and  conveyed 
by  me,  as  aforesaid,  were  described  in  said  judgment  and  in  the 
deed  executed  by  me,  as  aforesaid,  as  follows  : 

[Insert  same  description  of  premises  as  in  judgmenfl. 

All  of  which  is  respectfully  submitted  to  this  court. 

Dated  the  day  of  ,  19     . 

J.  R., 

Referee  {or  Sheriff). 
Receipt  for  Amount  Due  Plaintiff. 
[Title  of  the  action']. 

Received,  19     ,  of  J.  R.,  the  referee  {or  sheriff),  who 

made  the  sale  of  the  premises  under  and  by  virtue  of  the  judg- 
ment in  the  above  entitled  action,  the  sum  of  dollars,  which 
sum,  being  part  of  the  proceeds  of  the  sale  of  said  premises,  is 
received  by  me  under  and  by  virtue  of  the  provisions  of  said 
judgment,  being  (or  on  account  of)  the  amount  adjudged  to  be 
paid  to  said  plaintifif,  with  interest  thereon,  as  mentioned  in  said 
judgment. 

T.  R., 

Attorney  for  Plaintiff. 
Receipt  for  Costs. 
[Title  of  the  action]. 

Received,  19     ,  of  J.  R.,  the  referee  {or  sheriff),  who 

made  the  sale  of  the  premises  under  and  by  virtue  of  the  judg- 
ment in  the  above  entitled  action,  the  sum  of  dollars,  being 
the  amount  of  the  costs  and  disbursements  of  the  plaintiff  in  said 
action,  as  taxed,  with  the  interest,  which  costs  are  paid  by  said 
referee  {or  sheriff)  under  and  by  virtue  of  the  provisions  of 
said  judgment. 

T.  R., 

Attorney  for  Plaintiff. 
Receipt  for  Surplus  Moneys. 
[Title  of  the  action']. 

Received,  ,19     ,  of  J.   R.,   referee    {or  sheriff)   herein, 

pursuant  to  the  judgment  in  this  action,  the  sum  dollars, 


APPENDIX   OF    FORMS,  1697 

being  surplus  moneys  received  on  the  sale  of  the  premises  in  the 
above  entitled  action. 

N.  v.. 

Treasurer  of  County. 


No.  26. 

Order  Confirming  Report  of  Sale. 

At  a  term,  etc. 

Present :  Hon.  ,  Judge. 

{Title  of  the  action']. 

The  report  of  J.  R.,  Esq.,  the  referee  appointed  by  the  judg- 
ment in  this  action,  to  sell  the  mortgaged  premises  described  in 
the  complaint  herein,  having  been  duly  filed  in  the  office  of  the 
clerk  of  the  county  of        ,  on  the  day  of  ,  19     ,  and  on 

reading  and  filing  due  notice  of  the  filing  of  said  report,  with  due 
proof  of  the  service  thereof  on  all  of  the  parties  who  have 
appeared  in  this  action,  and  eight  days  having  elapsed  since  said 
notice  of  filing  said  report  was  served,  and  on  exceptions  having 
been  filed  thereto;  now  on  motion  of  T.  R.,  attorney  for  the  plain- 
tiff, it  is 

Ordered,  that  the  said  report  and  the  sale  therein  mentioned, 
be  absolute  and  binding  forever,  and  that  they  stand  as  in  all 
things  ratified  and  confirmed. 


No.  27. 

Petition  to  Sell  Balance  of  Mortgaged  Premises. 

{Title  of  the  action]. 

To  the  court  of  : 

The  petition  of  E.  F.,  the  above  named  plaintiff,  respectfully 
shows  that  a  judgment  of  foreclosure  and  sale  was  entered  in 
this  action  in  the  office  of  the  clerk  of  county,  on  the        dav 

Mortg.  Vol.  II.— 107. 


1698  APPENDIX    OF    FORMS. 

of  ,  19     ,  on  the  report  of  the  referee  herein,  whereby  it 

appears  that  the  sum  of  dollars  was  due  on  the  bond  and 

mortgage  mentioned  in  the  complaint,  on  the  day  of  ,  19  , 
and  that  the  amount  secured,  and  not  then  due,  was  the  sum 
of  dollars. 

That  such  proceedings  were  thereupon  had  upon  such  judg- 
ment, that,  under  and  by  virtue  thereof,  a  portion  of  the  prem- 
ises described  in  said  judgment,  and  in  the  complaint  herein, 
sufficient  for  the  payment  of  the  amount  reported  due  on  said 
bond  and  mortgage,  and  the  interest  thereon,  together  with  the 
costs  and  disbursements,  as  settled  by  the  clerk  of  the  county 
of  ,  and  entered  in  said  judgment,  was  sold,  and  brought 

the  sum  of  dollars,  which  said  sum  paid  the  costs  and 

expenses  on  said  foreclosure,  and  a  portion  of  the  principal 
secured  by  the  said  mortgage,  leaving  unpaid  on  said  mortgage, 
the  sum  of  dollars,  with  interest  thereon  from  the  day 

of         ,19    . 

That  the  premises  so  sold,  comprised  the  lot  first  described  in 
the  said  judgment  and  complaint,  and  was  the  whole  of  the  prem- 
ises described  therein,  except  the  lot  last  described  therein,  which 
said  lot  so  remaining  unsold,  is  bounded  and  described  as  fol- 
lows:  [Insert  description  from  judgment^. 

That  under  and  by  virtue  of  the  terms  of  said  bond  and  mort- 
gage, the  interest  thereon  was  payable  [state  terms  of  bond  and 
mortgage'];  that  the  interest  on  the  amount  unpaid  on  said  mort- 
gage, became  due  on  the  day  of  ,  19  ,  and  remains 
unpaid ;  that  no  party  has  appeared  in  said  action,  except  the 
defendants  C.  D.  and  M.  D.,  who  have  appeared  by  J.  Z.,  as  their 
attorney,  and  that  none  of  the  defendants  herein  are  infants  or 
absentees. 

Wherefore,  your  petitioner  prays,  that  an  order  may  be  granted 
in  this  action,  founded  on  said  judgment,  and  directing  a  sale  of 
said  unsold  lot,  hereinbefore  described,  under  and  pursuant  to 
the  said  judgment,  to  satisfy  the  amount  due  the  said  plaintiff, 
with  the  costs  of  this  proceeding;  and  as  said  lot  is  not  capable 
of  division,  your  petitioner  prays  that  the  whole  of  the  premises 
may  be  sold,  and  that  the  proceeds  may  be  applied  to  the  pay- 
ment of  such  costs  and  interest,  and  that  the  balance  may  "be 
applied  to  the  payment  of  the  amount  due  on  the  mortgage  of 
this  plaintiff. 

Dated  the  day  of  ,  19     . 

E.  R, 

Petitioner, 

[Add  verification  in  the  usual  /or;;?]. 


APPENDIX   OF    FORMS.  1699 

No.  28. 
Order  Directing  Sale  of  Balance  of  Mortgaged  Premises. 

At  a  term,  etc. 

Present :  Hon.  ,  Judge. 

[Title  of  the  action]. 

On  reading  and  filing  the  petition  of  E.  F.,  the  above  named 
plaintiff,  by  which  it  appears,  among  other  things,  that  the  sum 
of  dollars  remains  unpaid  on  the  judgment  of  foreclosure  in 

the   above   entitled   action,   with   interest   thereon  ,    19     , 

after  the  application  of  all  the  proceeds  of  the  sale  of  the  prem- 
ises sold  under  said  judgment,  on  19  ;  that  the  interest  on 
said  sum  of  dollars,  from  19  ,  became  due  and  pay- 
able on  the  day  of  ,  19  ,  and  still  remains  unpaid  ;  and 
that  all  the  premises  described  in  said  complaint  and  judgment, 
have  been  sold,  except  a  single  lot,  which  said  lot  can  be  sold 
more  advantageously  by  being  sold  in  one  parcel ;  and  on  reading 
and  filing  due  proof  of  the  service  of  this  petition  and  notice  of 
this  motion  on  C.  D.  and  M.  D.,  the  only  defendants  who  have 
appeared  herein ;  now,  on  motion  of  T.  R.,  plaintiff's  attorney, 
it  is 

Ordered,  that  the  residue  of  the  said  mortgaged  premises,  de- 
scribed in  the  said  complaint  and  judgment  in  this  action,  and 
remaining  unsold,  be  sold  under  the  direction  of  the  referee  here- 
tofore appointed  herein,  for  the  payment  of  the  amount  remaining 
unpaid  on  said  mortgage,  to  wit :  the  sum  of  dollars,  and 

interest  thereon  from  19     ,  together  with  the  costs  of  this 

proceeding,  under  and  pursuant  in  all  respects  and  according  to 
the  terms  and  the  directions  for  sale  contained  in  said  judgment. 

And  it  is  further  ordered,  that  the  said  defendants,  and  all  per- 
sons claiming  under  them,  or  either  of  them,  after  the  filing  of  the 
notice  of  the  pendency  of  this  action,  be  forever  barred  and  fore- 
closed of  all  right,  title,  interest  and  equity  of  redemption  of  or 
in  the  said  mortgaged  premises  so  sold,  or  any  part  thereof. 

[Add  clause  from  preceding  forms  directing  judgment  for  de- 
ficiency against  certain  defendants,  if  desired]. 


1700  APPENDIX   OF   FORMS. 

No.  29. 
Request  to  Docket  Judgment  for  Deficiency. 

\_Title  of  the  action]. 

Sir  : — Please  docket  a  judgment  in  your  office,  in  favor  of 
E.  F.,  the  above  named  plaintiff,  against  the  defendants  C.  D. 
and  J.  H.,  for  the  sum  of  dollars,  and  interest  thereon  from 

the  day  of  ,  19     ,  for  deficiency. 

Judgment  of  foreclosure  and  sale,  and  the  judgment  roll,  filed 
in  your  office,  on  the  day  of      ,  19     . 

Report  of  J.  R.,  Esq.,  the  referee  {or  sheriff)  to  sell,  named 
in  said  judgment,  filed  in  your  office  on  the  day  of  ,  19 

showing  a  deficiency  of  dollars. 

Dated  the  day  of  ,  19     . 

T.  R., 

Plaintiff's  Attorney. 
To.  R.  S.,  Esq.,  [Office  and  post-office  address']. 

Clerk  of  the  county  of 


No.  30. 

Judgment  for  Deficiency  on  Foreclosure. 

At  a  term,  etc. 

Present :  Hon.  ,  Judge. 

{Title  of  the  action]. 

The  report  of  J.  R.,  the  referee  {or  sheriff)  appointed  to  sell 
the  premises  described  in  the  judgment  in  the  above  entitled 
action,   having  been   filed   on   the  day  of  ,    19     ,   by 

which  it  appears  that  the  proceeds  of  said  sale  were  insufficient 
to  pay  the  amount  directed  to  be  paid  in  and  by  said  judg- 
ment, and  that  there  remains  due  from  the  defendants  C.  D.  and 
J.  H.,  to  the  plaintiff  for  such  deficiency,  the  sum  of  dollars, 

with  interest  thereon  from  the  day  of  ,  19  ,  and  the  said 
report  of  sale  having  been  duly  confirmed  by  an  order  of  said 


APPENDIX    OF    FORMS.  1701 

court  entered  on  the  day  of  ,  19     ;  now,  on  motion  of 

T.  R.,  attorney  for  the  plaintiff,  it  is 

Adjudged,   that   the   plaintiff   recover   from   said   defendants 
C.  D.  and  J.  H.,  the  said  sum  of  dollars,  with  interest  there- 

on from  the  day  of  ,  19    ,  amounting  in  all,  to  the  sum 

of  dollars. 

R.  S., 

Clerk. 


No.  31. 

Execution  for  Deficiency. 

The  People  of  the  State  of  ,  to  the  Sheriff  of  the  County 

of  ,  Greeting: 

Whereas,  by  a  certain  judgment  made  in  the  court  and 

entered  in   the   office   of  the   clerk  of   the   county   of  ,   on 

the  day  of  ,  19     ,  in  a  certain  action,  wherein  E.  F.  is 

plaintiff  and  C.  D.,  J.  H.  and  others,  are  defendants,  it  was, 
among  other  things,  ordered  and  adjudged,  that  the  mortgaged 
premises  described  in  said  judgment  should  be  sold  by  and  under 
the  direction  of  J.  R.,  Esq.,  as  referee  (or  sheriff)  ;  that  the  said 
referee  (or  sheriff)  should,  out  of  the  proceeds  of  said  sale,  re- 
tain the  costs  and  expenses  of  said  sale  and  pay  the  costs  and 
allowances  of  the  plaintiff  and  the  amount  reported  due  to  the 
plaintiff  for  principal  and  interest,  or  so  much  thereof  as  the 
purchase  money  of  the  mortgaged  premises  would  pay  of  the 
same;  that  if  the  moneys  received  from  said  sale  should  be  in- 
sufficient to  pay  the  amount  so  reported  due  to  the  plaintiff,  with 
the  interest  and  costs  as  aforesaid,  then  that  the  said  referee  (or 
sheriff)  specify  the  amount  of  such  deficiency  in  his  report  of 
sale;  and  that  the  defendants  C.  D.  and  J.  H.,  should  pay  the 
same  to  the  plaintiff. 

And  whereas,  the  said  referee  has  duly  filed  his  report  of  sale 
in  the  office  of  the  clerk  of  the  county  of  ,  from  which  it 

appears  that  the  money  received  from  said  sale  was  insufficient  to 
pay  the  amount  so  reported  due  to  the  plaintiff,  with  interest  and 
costs  as  aforesaid,  and  that  the  amount  of  such  deficiency  is  the 
sum  of  dollars,  and  interest  thereon  from  the  day 

of  19     ,  and  the  report  of  said  referee  has  been  duly  con- 

firmed. 


1702  APPENDIX    OF    FORMS. 

And  whereas,  said  judgment  for  said  deficiency,  in  favor  of 
E.  F.,  the  said  plaintiff,  and  against  the  said  defendants  C.  D, 
and  J.  H.,  for  the  sum  of  dollars,  and  interest  thereon  from 

the  day  of  19     ,  was  on  the  day  of  19     ,  duly 

docketed  in  the  office  of  the  clerk  of  the  county  of  ,  and 

the  said  sum  of  dollars,  and  interest  thereon  from  the        day 

of  19     ,  is  now  actually  due  on  said  judgment. 

You  ARE,  THEREFORE,  required  to  satisfy  the  said  judgment  out 
of  the  personal  property  of  said  judgment  debtors,  or  either  of 
them,  within  your  county ;  and  if  sufficient  personal  property  can- 
not be  found,  then  out  of  the  real  property  in  your  county  belong- 
ing to  said  judgment  debtors,  or  either  of  them,  on  the  day 
of  ,  19  ,  when  said  judgment  was  so  docketed  in  your 
county,  or  at  any  time  thereafter,  and  to  return  this  execution 
within  sixty  days  after  its  receipt  by  you  to  the  clerk  of  the 
county  of           ,  where  said  judgment  roll  is  filed  as  aforesaid. 

Witness,  Hon.  ,  one  of  the  Justices  of  said  court, 

Ihis  day  of  ,  19     . 

T.  R., 

Plaintiff's  Attorney. 


No.  32. 

Sheriff's  or  Referee's  Deed  on  Foreclosure. 

This  Indenture,  made  this  day  of  ,  19     ,  between 

J.  R.,  the  sheriff  of  the  county  of  ,  (or  the  referee,  in  the  action 
hereinafter  mentioned),  of  the  city  of  ,  county  of  ,  and 

state  of  ,  of  the  first  part,  and  of  the  second  part. 

Whereas,  at  a  term  of  the         court  of  ,  held  at  ,  on 

the  day  of  ,  19     ,  it  was,  among  other  things,  ordered, 

adjudged  and  decreed,  by  the  said  court  in  a  certain  action  then 
pending  in  said  court  between  E.  F.  plaintiff,  and  [name  all  the 
defendants]  defendants,  that  all  and  singular,  the  premises 
described  in  a  mortgage  executed  by  C.  D.  and  M.  D.,  his  wife,  to 
E.  P.,  and  recorded  in  the  county  clerk's  office  in  liber  of 

mortgages,   at   page  ,   and   being   the   same   premises   men- 

tioned in  the  complaint  in  said  action,  and  described  in  said 
judgment,  or  such  part  thereof,  as  might  be  sufficient  to  discharge 
the  mortgage  debt,  the  expenses  of  the  sale,  and  the  costs  of  said 
action,  and  which  might  be  sold  separately,  without  material 
injury  to  the  parties  interested,  be  sold  at  public  auction,  accord- 


APPENDIX   OF    FORMS.  1703 

ing  to  law  and  the  course  and  practice  of  said  court,  by  and  under 
the  direction  of  said  sheriff,  of  said  county,  (or  of  said  J.  R.), 
who  was  appointed  a  referee  in  said  action,  and  to  whom  it  was 
referred  by  said  judgment,  among  other  things,  to  make  such 
sale;  that  the  said  sale  be  made  in  the  county  where  the  said 
mortgaged  premises,  or  the  greater  part  thereof,  are  situated ;  that 
the  said  referee,  (or  sheriff),  give  due  public  notice  of  the  time 
and  place  of  such  sale,  according  to  law  and  the  course  and 
practice  of  said  court ;  that  the  plaintiff,  or  any  of  the  parties  to 
said  action,  might  become  a  purchaser  or  purchasers,  on  such 
sale;  and  that  the  said  referee  execute  to  the  purchaser  or  pur- 
chasers of  said  mortgaged  premises,  or  of  such  part  or  parts 
thereof,  as  should  be  sold,  a  good  and  sufficient  deed  or  deeds  of 
conveyance  for  the  same,  and  pay  all  taxes,  assessments  or  water 
rates,  which  were  liens  upon  the  property  sold. 

And  whereas,  the  said  referee  (or  sheriff),  in  pursuance  of  the 
order  and  judgment  of  said  court,  did,  on  the  day  of  ,  19  , 
sell  at  public  auction,  at  [state  the  time  and  place  of  sale^,  the 
premises  described  in  the  said  judgment,  due  notice  of  the  time 
and  place  of  such  sale  being  first  given,  pursuant  to  the  said  judg- 
ment, at  which  sale,  the  premises  hereinafter  described  were 
fairly  struck  off  to  the  said  party  of  the  second  part,  for  the  sum 
of  dollars,  that  being  the  highest  sum  bidden  for  the  same. 

Now  This  Indenture  Witnesseth,  that  the  said  referee,  (or 
sheriff),  the  party  of  the  first  part  to  these  presents,  in  order  to 
carry  into  effect  the  sale  so  made  by  him  as  aforesaid,  in  pursu- 
ance of  the  order  and  judgment  of  said  court,  and  in  conformity 
to  the  statute  in  such  case  made  and  provided,  and  also  in  con- 
sideration of  the  premises,  and  of  the  sum  of  money  so  bidden, 
as  aforesaid,  having  been  first  duly  paid  by  the  said  party  of  the 
second  part,  the  receipt  whereof  is  hereby  acknowledged,  hath 
bargained  and  sold,  and  by  these  presents  doth  grant,  and  convey 
unto  the  said  party  of  the  second  part,  all  the  right,  title  and 
interest  which  the  said  C.  D.  and  M.  D.,  his  wife,  the  mortgagors 
aforesaid,  had  at  the  time  of  the  execution  or  recording  of  said 
mortgage,  it  being  their  interest  in  said  premises  so  sold  and 
hereby  conveyed,  in  and  to  [insert  from  the  judgment  the  descrip- 
tion of  the  parcel  intended  to  be  conveyed],  to  have  and  to  hold, 
all  and  singular,  the  premises  above  mentioned  and  described,  and 
hereby  conveyed,  unto  the  said  party  of  the  second  part,  his 
heirs  and  assigns  forever. 

In  Witness  Whereof,  the  said  party  of  the  first  part,  referee 


1704  APPENDIX    OF    FORMS. 

(or  sheriff)  as  aforesaid,  hath  hereunto  set  his  hand  and  seal  the 
day  and  year  first  above  written. 


[Acknowledgment  in  the  usual  form]. 


J.  R. 

Referee. 


No.  33. 
Affidavit  on  Application  for  Order  of  Possession. 

[Title  of  the  action], 
CouK*rY  OF         ,  ss.: 

M.  N.,  being  duly  sworn,  says  that  this  action  was  brought  for 
the  foreclosure  of  a  mortgage  on  certain  real  estate  situated  in  the 
said  county  of  ,  and  state  of  ;  that  judgment  of  fore- 

closure and  sale  was  entered  herein  in  the  office  of  the  clerk  of 
the  county  of  ,  on  the  day  of         ,  19     ,  J.  R.  Esq.,  of 

the  city  of  ,  being  therein  duly  appointed  the  referee  to 

sell;  that  said  judgment  contained  the  usual  provision  that  the 
purchaser  be  let  into  possession  on  the  production  of  the  referee's 
deed,  to  which  said  judgment,  reference  is  hereby  had  as  part 
hereof;  that  due  notice  of  said  sale  was  given  by  said  referee, 
and  that  on  the  day  of  19     ,  the  mortgaged  premises 

described  in  said  judgment  were  duly  sold  at  public  auction  by 
said  referee  to  this  deponent  for  the  sum  of  dollars,  that 

being  the  highest  sum  bidden  for  the  same;  that  this  deponent 
has  duly  paid  the  said  purchase  money,  and  that  the  said  referee 
has  also  executed,  acknowledged  and  delivered  to  deponent  a  deed 
of  conveyance  of  said  mortgaged  premises ;  that  the  report  of 
sale  of  said  referee  was  duly  filed  in  the  office  of  the  clerk  of  this 
court  on  the  day  of  ,  19     ,  to  which  reference  is  hereby 

had  as  a  part  hereof,  and  that  said  report  has  been  duly  con- 
firmed; that  on  the  day  of  ,  19  ,  deponent  went  to  the 
said  mortgaged  premises  and  found  C.  D.,  who  is  one  of  the  de- 
fendants in  this  action,  in  possession  thereof ;  that  he  then  pro- 
duced and  showed  to  said  C.  D.  the  said  deed  of  said  referee  and 
demanded  to  be  let  into  possession  by  virtue  thereof,  but  the  said 
C.  D.  refused  and  still  refuses  to  surrender  the  said  premises,. 


APPENDIX    OF    FORMS,  1705 

or  any  part  thereof,  and  still  forcibly  holds  possession  thereof 
from  deponent. 

[Juraq,  M.  N. 


No.  34. 
Order  for  Possession. 

At  a  term,  etc. 

Present :  Hon.  ,  Judge. 

[Title  of  the  action]. 

On  reading  and  filing  the  afhdavit  of  M.  N.,  the  purchaser  at 
the  sale  of  the  mortgaged  premises  in  this  action,  verified 
19     ,  and  on  all  of  the  papers  and  proceedings  herein,  including 
the  judgment  of  foreclosure  and  sale,  entered  herein  in  the  office 
of  the  clerk  of  the  county  of  ,  on  the  day  of  ,  19     , 

and  on  the  report  of  the  sale  by  J.  R.,  Esq.,  the  referee  appointed 
to  sell,  filed  in  said  office,  on  the  day  of  ,  19     ,  and  on 

the  order  confirming  said  report  entered  herein  on  the  day 

of  ,    19     ,   and  on   the   deed   from   the   said   referee  to 

said  M.  N.,  which  said  deed  bears  date  the  day  of        ,  19     , 

and  on  the  notice  of  this  motion,  with  due  proof  of  the  service 
thereof  on  the  defendant,  C.  D.,  who  is  now  in  possession  of  the 
said  premises;  and  after  hearing  X.  Y.,  Esq.,  attorney  for  the 
said  M.  N.,  the  purchaser,  and  J.  Z.,  Esq.,  attorney  for  the  said 
C.  D.,  in  possession  thereof,  it  is 

Ordered,  that  the  sheriff  of  the  county  of  ,  be,  and  he  is 

hereby  required,  forthwith  to  put  the  said  M.  N.  into  possession 
of  the  said  premises,  and  that  this  order  be  executed  as  if  it  were 
an  execution  for  the  delivery  of  the  possession  of  said  premises. 

The  said  premises  are  described  as  follows :  [Insert  descrip- 
tion]. 


No.  35. 
Affidavit  on  Which  to  Apply  for  a  Receiver  of  Rents. 
[Title  of  the  action]. 
Cou]s*rY  OF         ,  ss.: 

Sealed  with  our  seals,  and  dated  the  day  of  ,  19     . 

E.  F..  being  duly  sworn,  says  that  he  is  the  plaintiff  in  thi? 


1706  APPENDIX    OF    FORMS. 

action ;  that  this  action  is  brought  to  foreclose  a  mortgage  given 
to  secure  the  payment  of  the  sum  of  dollars,  and  interest 

thereon,  from  the  day  of  ,  19  ,  on  the  following  described 
premises:  [Insert  description^. 

That  said  mortgage  is  a  second  mortgage,  and  is  inferior  as  a 
lien  to  a  mortgage   for  dollars   upon   the  same  premises, 

held  by  ,  upon  which  there  is  now  unpaid  and  owing  inter- 

est from  the  day  of  ,  19     . 

That  there  are  unpaid  taxes  and  assessments  on  said  premises, 
amounting  at  this  date,  to  the  sum  of  dollars,  as  nearly  as 

can  be  ascertained  by  deponent,  being  as  follows :  the  general 
tax  for  the  year  19,  for  dollars,  and  interest  there- 

on, and  on  assessment  for  dollars,  for  paving  street, 

and  interest  thereon. 

That  the  whole  amount  of  the  incumbrances  on  said  property, 
including  the  plaintiff's  claim,  and  the  said  prior  mortgage,  and 
the  costs  and  expenses  of  this  action,  and  of  a  sale,  will  amount 
at  least  to  the  sum  of  dollars. 

That  the  said  mortgaged  premises  are  an  inadequate  and  insuf- 
ficient security  for  the  plaintiff's  demand,  and  that  they  are  not 
worth  more  than  the  sum  of  dollars,  as  deponent  verily 

believes ;  that  the  grounds  of  deponent's  belief  are  [State  fully 
the  reasons  for  fixing  the  value  of  the  property  at  the  sum 
named]. 

That  the  defendant,  C.  D.,  is  the  only  person  who  is  person- 
ally obligated  for  the  payment  to  the  plaintiff  of  the  said  mort- 
gage debt,  and  that  the  said  defendant  is  entirely  irresponsible 
and  insolvent.     [State  reasons  for  believing  this  to  be  so]. 

That  there  are  judgments  against  said  defendant,  which  are 
unsatisfied  of  record,  and  that  the  defendants  O.  H.  and  G.  K., 
are  holders  of  said  judgments,  and  are  made  parties  to  this  action 
for  that  reason. 

That  said  mortgaged  premises  are  rented  to  the  defendant 
C.  L.,  at  the  price,  as  deponent  is  informed  and  believes,  of  the 
sum  of  dollars  per  year  (or  month),  and  that  the  said  de- 

fendant (mortgagor),  is  collecting  and  receiving  the  rents  there- 
for. 

[Jurat].  E.  F. 


APPENDIX   OF    FORMS.  1707 

No.  36. 

Order  Appointing  Receiver  of  Rents. 

At  a  term,  etc. 

Present :  Hon.  ,  Judge. 

[Title  of  the  action]. 

On  reading  and  filing  the  affidavit  of  E.  F.,  verified  ,  19  , 
and  the  notice  of  this  motion,  with  proof  of  the  due  service 
thereof,  and  on  the  complaint  which  has  been  filed  herein ;  and 
it  appearing  that  the  mortgaged  premises  are  an  inadequate  secu- 
rity for  the  mortgage  debt,  and  that  no  one,  except  the  defendant 
C.  D.,  is  personally  liable  therefor,  and  that  he  is  insolvent, 
and  that  said  defendant  is  about  to  collect  the  rents ;  and  after 
hearing  T.  R.,  attorney  for  the  plaintiff,  in  support  of  the  motion, 
and  J.  Z.,  attorney  for  the  defendant  C.  D.,  in  opposition  thereto, 
it  is 

Ordered,  that  J.  B.,  of  the  city  of  ,  counselor  at  law, 

be,  and  he  hereby  is  appointed,  with  the  usual  powers  and  direc- 
tions, receiver  of  all  the  rents  and  profits  now  due  and  unpaid,  or 
to  become  due,  pending  this  action,  and  issuing  from  the  mort- 
gaged premises  mentioned  in  the  complaint,  and  described  as 
follows:  [Insert  description]. 

That  before  entering  upon  the  duties  of  his  trust,  the  said 
receiver  execute  to  the  people  of  this  state,  and  file  with  the  clerk 
of  this  court,  his  bond  with  two  sureties,  to  be  approved  by  a 
judge  of  this  court,  in  the  penal  sum  of  dollars,  conditioned 

for  the  faithful  performance  of  his  duties  as  such  receiver. 

That  said  receiver  be,  and  he  hereby  is  directed  to  demand, 
collect  and  receive  from  the  tenant  or  tenants  in  possession  of 
said  premises,  or  other  persons  liable  therefor,  all  the  rents  there- 
of, now  due  and  unpaid,  or  hereafter  to  become  due. 

That  tenants  in  possession  of  such  premises,  and  such  other 
person  or  persons  as  may  be  in  possession  thereof,  do,  and  they 
are  hereby  directed  to  attorn  as  such  tenant  or  tenants,  to  said 
receiver,  and  until  the  further  order  of  this  court,  to  pay  over  to 
such  receiver  all  rents  of  such  premises,  now  due  and  unpaid,  or 
that  may  hereafter  become  due. 

That  all  tenants  of  the  premises,  and  other  persons  liable  for 
such  rents,  are  hereby  enjoined  and  restrained  from  paying  any 


1708  APPENDIX    OF    FORMS. 

rent  for  such  premises,  to  the  defendant,  his  agents,  servants  or 
attorneys. 

That  all  persons  now,  or  hereafter  in  possession  of  said  prem- 
ises, or  any  part  thereof,  and  not  holding  such  possession  under 
valid  and  existing  leases,  do  forthwith  surrender  such  possession 
to  said  receiver. 

That  the  said  receiver  be,  and  he  hereby  is  authorized  to  insti- 
tute and  carry  on  all  legal  proceedings  necessary  for  the  protec- 
tion of  all  premises  described  in  the  complaint  or  referred  to  in 
this  order,  including  such  proceedings  as  may  be  necessary  to 
recover  possession  of  the  whole,  or  any  part  of  said  premises,  and 
to  institute  and  prosecute  suits  for  the  collection  of  rents  now 
due,  or  hereafter  to  become  due  on  the  aforesaid  premises,  or 
any  part  thereof;  and  to  institute  and  prosecute  summary  pro- 
ceedings for  the  removal  of  any  tenant  or  tenants,  or  other 
persons  therefrom. 

And  said  receiver  is  hereby  authorized,  from  time  to  time,  to 
rent  or  lease,  as  may  be  necessary,  for  terms  not  exceeding  one 
year,  any  of  said  premises ;  to  keep  the  property  insured  against 
loss  or  damage  by  fire,  and  in  repair,  and  to  pay  the  taxes,  assess- 
ments and  water  rates  upon  said  premises. 

That  said  receiver  is  hereby  authorized  to  employ  an  agent,  if 
he  shall  deem  proper,  to  rent  and  manage  said  premises,  to  collest 
the  rents,  and  to  keep  the  premises  insured  and  in  repair,  and  to 
pay  the  reasonable  value  of  his  services,  out  of  the  rent  received. 

That  during  the  pendency  of  this  action,  the  defendant  and  his 
agents  and  attorneys,  be  enjoined  and  restrained  from  collecting 
the  rents  of  said  premises,  and  from  interfering,  in  any  manner, 
with  the  property  or  its  possession. 

That  the  said  receiver  retain  the  moneys  which  may  come  into 
his  hands,  by  virtue  of  his  said  appointment,  until  the  sale  of  the 
premises  mentioned  in  the  complaint  under  the  judgment  to  be 
entered  in  this  action ;  and  that  he  then,  after  deducting  his 
proper  fees  and  disbursements  therefrom,  apply  the  said  moneys 
to  the  payment  of  any  deficiency  there  may  be,  of  the  said  amount 
directed  to  be  paid  to  the  plaintiff,  in  and  by  the  said  judgment; 
and  in  case  there  is  no  such  deficiency,  that  he  retain  the  said 
moneys  in  his  hands,  until  the  further  order  of  this  court  in  the 
premises. 

That  the  said  receiver,  or  any  party  hereto,  may  at  any  time, 
on  proper  notice  to  all  parties  who  may  have  appeared  in  this 
action,  apply  to  this  court  for  further  or  other  instructions  and 
power,  necessary  to  enable  said  receiver  properly  to  fulfill  his 
duties. 


APPENDIX   OF   FORMS.  1709 


No.  Z7. 
Bond  of  Receiver. 

[Title  of  the  actionl. 

Know  all  Men  by  these  Presents,  that  we,  J.  B.,  of  the 
of  ,  county  of  ,  and  state  of  ,  as  principal, 

and  O.  P.  and  R.  S.,  of  the  same  place,  as  sureties,  are  held  and 
firmly  bound  unto  the  people  of  the  state  of  ,  in  the  sum 

of  dollars,  to  be  paid  unto  the  said  people  of  the  state 

of  ;  for  which  payment  well  and  truly  to  be  made,  we  bind 

ourselves,  our  heirs,  executors  and  administrators,  jointly  and 
severally,  firmly,  by  these  presents. 

Sealed  with  our  seals,  and  dated  the  day  of         ,  19     . 

Whereas,  by  an  order  of  this  court,  entered  in  the  above 
entitled  action,  on  the  day  of        ,  19     ,  the  above  bounden 

J.  B.  was  appointed  receiver  of  the  rents  and  profits  of  the  mort- 
gaged premises  described  in  the  complaint  herein. 

Now,  the  condition  of  this  obligation  is  such,  that  if  the  above 
bounden  J.  B.  shall,  according  to  the  rules  and  practice  of  this 
court,  duly  file  his  inventory,  and  annually  or  oftener,  if  thereunto 
required,  duly  account  for  what  he  shall  receive  or  have  in 
charge,  as  receiver  in  the  said  action,  and  apply  what  he  shall 
receive  or  have  in  charge,  as  he  may  from  time  to  time  be 
directed  by  the  court ;  and  if  he  shall  faithfully  perform  his  duties 
as  such  receiver,  in  all  things,  according  to  the  true  intent  and 
meaning  of  the  aforesaid  order,  then  this  obligation  to  be  void ; 
otherwise  to  remain  in  full  force  and  virtue. 

^Signatures  and  seals]. 
CouN*rY  OF  ,  ss.: 

O.  P.  and  R.  S.,  being  severally  duly  sworn,  say,  each  for  him- 
self, that  he  is  a  householder  (or  freeholder)  in  this  state,  and  is 
worth  the  sum  of  dollars  [double  the  amount  of  the  penalty 

of  the  bond],  over  and  above  all  his  debts  and  liabilities,  and 
exclusive  of  property  exempt  by  law  from  levy  and  sale  under  an 
execution. 

[Jurat].  [Sigtiatures]. 

County  of  ,  ss.: 

On  this  day  of  ,  19     ,  before  me,  the  subscriber, 

personally  appeared  J.  B.,  O.  P.  and  R.  S.,  to  me  known  to  be 


1710  APPENDIX    OF    FORMS. 

the  individuals  described  in,  and  who  executed  the  within  instru- 
ment, and  they  severally  acknowledged  to  me  that  they  executed 
the  same. 

[Signature  of  Officer']. 
[Indorsed'},  Approved  the  day  of  ,  19    . 

[Signature  of  Judge]. 


No.  38. 
Notice  of  Claim  to  Surplus  Moneys. 

[Title  of  the  action']. 

To  R.  S.,  Esq.,  clerk  of  the  county  of  : 

Sir  : — Take  notice  that  D.  B.,  who  resides  at  ,  in  the 

of  ,  is  entitled  to  the  surplus  moneys,  or  some  part  thereof, 

arising  from  the  sale  of  the  mortgaged  premises,  under  the  judg- 
ment of  foreclosure  and  sale  entered  in  the  above  entitled  action ; 
that  the  nature  and  the  extent  of  the  claim  of  the  said  D.  B.  is  as 
follows :  [State  nature  of  claim,  as]  : 

That  the  said  D.  B.  is  the  owner  of  a  judgment  for         dollars, 
and  interest  from  the  day  of  ,  19     ,  obtained  by  him 

in  the  court,  against  the  defendant  C.  D.,  on  the  day 

of  ,   19    ,  and  docketed  in  the  county  clerk's  office 

on  the  day  of  ,  19     ,  and  while  the  said  defendant  was 

the  owner  of  the  equity  of  redemption  in  the  said  mortgaged 
premises,  and  before  the  sale  thereof  under  foreclosure ;  that 
there  is  now  due  upon  said  judgment  the  sum  of  dollars, 

with  interest  from  the  day  of         ,  19     ,  and  that  the  said 

D.  B.  claims  that  the  said  judgment  is  a  lien  upon  said  mortgaged 
premises  next  in  priority  after  the  mortgage  of  the  plaintiff  in 
this  action,  and  is  the  first  lien  upon  said  surplus  moneys. 
Dated  the  day  of        ,  19     . 

D.  B.,  Claimant, 

by  R.  A.,  His  Attorney. 
[Office  and  post-office  address]. 


APPENDIX    OF    FORMS.  1711 


No.  39. 

Affidavit  on  Motion  for  Reference  to  Distribute  Surplus 

Moneys. 

[Title  of  the  action]. 

County  of  ,  ss.: 

R.  A.,  being  duly  sworn,  says  that  he  is  attorney  for  D,  B.,  one 
of  the  defendants  in  the  above  entitled  action  {or,  who  had  a  lien 
on  the  mortgaged  premises  at  the  time  of  the  sale  in  this  action). 

That  this  action  was  brought  for  the  foreclosure  of  a  mortgage 
upon  certain  premises  therein  described,  situated  in  the  county 
of 

That  on  the  day  of  ,   19     ,  a  final  judgment  was 

entered  therein,  in  the  county  clerk's  office,  for  the  fore- 

closure of  said  mortgage  and  a  sale  of  said  premises,  and  that  said 
premises  were  sold  pursuant  to  said  judgment,  by  J.  R.,  referee 
(or  sheriff  of  the  county  of  ),  on  the  day  of  ,  19     . 

That  the  report  of  said  referee  (or  sheriff),  dated  ,  19     , 

has  been  filed  with  the  clerk  of  the  county  of  ,  by  which 

report  it  appears  that,  after  paying  the  amounts  directed  in  and  by 
said  judgment  to  be  paid  out  of  the  proceeds  of  said  sale,  there 
remained  a  surplus  of  dollars,  which  amount  has  been  paid 

by  said  referee  (or  sheriff)  into  court,  and  deposited  with  the 
treasurer  of  county    (or,  in  the  city  of  Nezv  York,  with 

the  chamberlain  of  the  city  of  New  York),  to  the  credit  of  this 
action,  and  for  the  use  of  the  persons  entitled  thereto. 

That  said  D.  B.  is  entitled  to  said  surplus  moneys,  or  some 
part  thereof,  and  that  the  nature  and  extent  of  his  claim  thereto 
are  set  forth  in  the  notice  hereinafter  mentioned,  a  copy  of  which 
is  hereto  annexed. 

That  from  all  the  searches  for  conveyances  and  incumbrances 
made  in  this  action  and  filed  with  the  judgment  roll  herein,  the 
following  and  no  other  unsatisfied  liens  upon  said  surplus  moneys 
appear,  to  wit:  [specify  liens'],  and  that  no  other  unsatisfied 
liens  thereon  are  known  to  this  deponent  to  exist. 

That  the  notice  of  the  claim  of  said  D.  B.  to  such  surplus 
moneys  has  been  filed  by  him  with  the  clerk  of  the  county  of 
,  a  copy  of  which  notice  is  hereto  annexed  and  marked 
"Exhibit  A." 

[Jurat].  R.  A. 


1712  APPENDIX   OF    FORMS. 


No.   40. 

Notice  of  Motion  for  Reference  to  Distribute  Surplus 

Moneys. 

[Title  of  the  action]. 

Sirs  : — Take  notice  that  on  the  annexed  affidavit  of  R.  A.,  and 
upon  the  pleadings  and  all  the  proceedings  and  papers  in  this 
action,  the  claimant,  D.  B.,  will  apply  to  this  court,  at  a  term 

thereof,  to  be  held  at  ,  on  the  day  of  ,  19     ,  at 

the  opening  of  court  on  that  day,  or  as  soon  thereafter  as  coun- 
sel can  be  heard,  for  an  order  of  reference  to  a  suitable  referee 
to  be  selected  by  the  court,  to  ascertain  and  report  the  amount 
due  to  D.  B.,  or  to  any  other  person,  which  is  a  lien  upon  the 
surplus  moneys  received  upon  the  sale  of  the  mortgaged  prem- 
ises in  this  action,  and  to  ascertain  the  priorities  of  the  several 
liens  thereon,  to  the  end  that  on  the  coming  in  and  confirmation 
of  the  report  on  said  reference,  such  further  order  may  be  made 
for  the  distribution  of  such  surplus  moneys,  as  may  be  just, 
and  for  such  other  or  further  relief  as  the  court  may  deem 
proper. 

Dated  the  day  of  ,  19    . 

R.  A., 

Attorney  for  Claimant,  D.  B. 
{^Office  and  post-office  address]. 
To  T.  R.,  Esq., 

Attorney  for  Plaintiff. 

[Name  the  parties  or  their  attorneys  zvho  have  appeared  in  the 
action  or  filed  a  notice  of  claim  with  the  clerk,  previous  to  the 
granting  of  the  order  of  reference]. 


No.  41. 
Order  of  Reference  as  to  Claims  to  Surplus  Moneys. 

At  a  term,  etc. 

Present:  Hon.  ,  Judge. 

[Title  of  the  action]. 

On  reading  and  filing  the  affidavit  of  R.  A.,  and  notice  of  this 


APPENDIX   OF    FORMS.  1713 

motion,  with  due  proof  of  the  service  thereof  on  all  of  the  parties 
who  have  appeared  herein,  or  who  have  filed  with  the  clerk  of 
this  court,  a  notice  of  claim  to  the  surplus  moneys,  or  some  part 
thereof;  and  on  motion  of  R.  A.,  attorney  for  the  claimant  D.  B., 
and  after  hearing  C.  R.,  counsel  for  P.  S.,  in  opposition  thereto, 
(or,  no  one  appearing  in  opposition  thereto),  it  is 

Ordered,  that  it  be  referred  to  O.  N.,  Esq.,  counselor  at  law, 
of  ,  as  referee,  to  ascertain  and  report  the  amount  due  to 

D.  B.,  and  to  every  other  person,  who  has  a  lien  upon  the  surplus 
moneys  in  this  action,  and  to  ascertain  the  priorities  of  the  sev- 
eral liens  thereon,  to  the  intent  that  on  the  coming  in  and  con- 
firmation of  the  report  of  said  referee,  such  further  order  may 
be  made  for  the  distribution  of  such  surplus  moneys,  as  may  be 
just,  and  that  the  said  referee  make  his  report  thereon  with  all 
convenient  speed.  [//  unsatisfied  liens  appear  from  the  searches 
on  file,  or  are  known  to  exist,  the  court  should  designate  the 
manner  of  serving  the  notice  upon  the  holders  of  such  liens,  for 
example^  : 

And  it  is  further  ordered,  that  in  addition  to  the  other  notices 
required  by  the  rules  of  this  court,  notice  of  the  proceedings  on 
such  reference,  be  given  to  G.  H.  and  L.  M.,  either  by  service 
on  them  personally,  or  by  leaving  the  same  at  their  respective 
places  of  residence,  not  less  than  days  prior  to  the  hearing. 


No.  42. 
Subpoena  to  Attend  Reference. 

[Title  of  the  action]. 

Sirs  : — I.  O.   N.,  the  referee  appointed  by  an  order  of  this 
court,  granted  at  a  term  thereof,  held  at  the  of  ,  on 

the  day  of  ,  19     ,  to  ascertain  and  report  the  amount 

due  to  the  defendant  D.  B.,  and  to  any  other  person  who  has  a 
lien  upon  the  surplus  moneys,  arising  upon  the  sale  of  the  prem- 
ises described  in  the  complaint  in  this  action,  and  to  ascertain 
the  priorities  of  the  several  liens  thereon,  do  hereby  appoint 
the  day  of         ,  19     ,  at         o'clock  in  the         noon,  for  the 

hearing  of  matters  so  referred  to  me,  at  which  time  and  place 
all  parties  concerned  are  to  attend. 

Dated  the  day  of  ,  19     .  O.  N.,  Referee. 

Mortg.  Vol.  II.— 108. 


1714  APPENDIX    OF    FORMS. 

To  .  [Name  all  the  parties  who  appeared  in  the  action,  or  zvho 
filed  a  notice  of  claim  with  the  clerk  previous  to  the  entry  of  the 
order  of  reference,  also  the  owner  of  the  equity  of  redemption^ 
and  all  persons  who  are  known  to  have  unsatisfied  liens.'\ 


No.  43. 

Certificate  of  Clerk  as  to  Who  Have  Appeared  and  Filed 
Claims  Against  the  Surplus  Moneys. 

[Title  to  the  action']. 

I,  R.  S.,  the  undersigned,  clerk  of  the  county  of  ,  and  of 

the  above  named  court,  do  hereby  certify,  that  the  following 
named  defendants,  and  no  others,  have  entered  appearances  in 
this  action,  to  wit :  C.  D.,  by  his  attorney,  J.  Z.,  and  D.  B.,  by  his 
attorney,  R.  A. 

I  further  certify,  that  the  following  notices  of  claim  to  the 
surplus  moneys  in  the  above  entitled  action,  and  no  others,  were 
filed  in  my  office,  previous  to  the  entry  of  the  order  of  reference 
as  to  such  surplus  moneys,  to  wit :  one  claim  on  the  part  of 
C.  D.,  another  on  the  part  of  D.  B.,  [name  other  claims  in  like 
manner'] ;  and  that  no  notice  of  claim  to  such  surplus  was  annexed 
to  the  referee's  report  of  sale,  filed  in  my  office  on  the  day 

of  ,  19     . 

Dated  the  day  of         ,  19    .  R.  S., 

[Seal].  Clerk. 


No.  44. 
Claim  of  Creditor  Before  Referee,  to  Surplus  Moneys. 

[^Title  of  the  action]. 

To  O.  N.,  Referee : 

The  claim  of  G.  D.,  (a  judgment)  creditor  of  C.  D.,  the  de- 
fendant in  this  action,  to  the  surplus  moneys  arising  from  the 
sale  of  the  mortgaged  premises  under  the  decree  herein,  respect- 
fully states  that  he  resides  at  ,  in  the  county  of  ,  and 
state  of               ;  that  he  has  a  lien  upon  the  said  surplus  moneys,. 


APPENDIX    OF    FORMS.  1715 

by  virtue  of  a  jndgrnent  recovered  in  the  surpeme  court,  against 
the  mortgagor  C.  D.,  for  the  sum  of  dollars,  on  the  day 

of  19     ,  and   docketed  in  county  clerk's  office,   on 

the  day  of  19     ,  while  he,  the  said  C.  D.,  was  the 

owner  of  the  equity  of  redemption  in  said  mortgaged  premises, 
and  before  the  commencement  of  this  action,  which  lien  is  next 
in  priority  after  the  mortgage  of  the  plaintiff,  the  whole  of  which 
judgment  is  still  due  and  unpaid. 

Wherefore,  he  claims  the  whole  of  said  surplus  moneys  from 
said  sale,  which  only  amount  to  the  sum  of  dollars. 

Dated  the  day  of  ,  19     . 

G.  D., 

Claimant. 

County  of  ,  ss. : 

G.  D.,  the  above  named  claimant,  being  duly  sworn,  says  that 
the  facts  set  forth  in  the  above  claim  are  true;  that  the  amount 
therein  claimed  as  being  due  to  him  upon  the  judgment  therein 
mentioned,  is  justly  due;  that  neither  he,  nor  any  person  by  his 
order,  to  his  knowledge  or  belief,  or  for  his  use,  has  received  the 
amount  that  is  claimed,  or  any  part  thereof,  or  any  security  or 
satisfaction  whatever  for  the  same,  or  any  part  thereof. 

[Jurat].  G.  D. 


No.  45. 
Referee's  Report  on  Surplus  Moneys. 
[Title  of  the  action]. 

To  the  court  of  : 

I,  the  undersigned,  referee  appointed  by  an  order  of  this  court,, 
granted  on  the  day  of  ,  19     ,  to  ascertain  and  report  the 

amount  due  to  D.  B.,  and  to  any  other  person  who  has  a  lien 
upon  the  surplus  moneys  in  this  action,  and  to  ascertain  and  re- 
port the  priorities  of  the  several  liens  thereon,  do  respectfully 
report : 

That  I  caused  all  parties  who  have  appeared  in  this  action,  and 
all  persons  who  have  filed  notices  of  claim  upon  the  surplus 
moneys,  and  all  persons  who  were  known  to  have  liens  thereon, 
as  appears  by  the  certificate  of  the  clerk,  which  is  hereto  annexed. 


1716  APPENDIX   OF    FORMS. 

showing  who  have  appeared  in  the  action  and  filed  notices  of 
claim,  and  by  the  affidavit  of  R.  A.,  attorney  for  the  claimant 
D.  B.,  showing  what  liens  appear  upon  the  searches  on  file,  to 
be  summoned  to  appear  before  me,  as  appears  from  the  proof  of 
service  of  the  subpoena  herein,  which  is  also  hereunto  annexed. 

That  on  said  hearing  I  was  attended  by  R.  A.,  attorney  for  the 
claimant,  D.  B.,  and  by  [such  other  persons  as  appeared];  that 
the  testimony  of  the  witnesses  upon  such  hearing  was  read  and 
signed  by  them ;  and  that  such  testimony  and  all  the  evidence, 
except  such  of  it  as  was  documentary,  is  annexed  to  this  re- 
port. 

That  from  such  testimony  and  evidence,  I  make  the  following 

'^■'  Finding  of  Fact  : 

I.  That  the  amount  of  the  surplus  moneys  in  this  action, 
is  the  sum  of  dollars,  as  appears  by  the  certificate  of  the 
county  treasurer  of  the  county  of  ,  which  is  hereto  annexed. 

II.  [Set  forth  the  full  findings  of  fact  of  the  referee  as  in 
the  trial  of  issues  in  an  action]. 

And  from  the  foregoing  findings  of  fact,  I  further  find  the 
following 

CoNCLUsiOKi's  OF  Law  : 

I.  That  there  is  due  and  owing  to  the  said  claimant  D.  B.,  the 
sum  of  dollars,  and  interest  thereon,  from  ,  19  , 
amounting  at  the  date  of  this  report,  to  the  sum  of  dollars, 
upon  and  by  virtue  of  said  judgment  recovered  by  him  against 
the  said  C.  D.,  as  aforesaid,  and  that  the  said  amount  is  the  first 
lien  on  the  said  surplus  moneys  in  this  action, 

II.  [Continue  in  the  order  in  which  the  liens  are  found  until 
the  whole  fund  is  disposed  of]. 

Dated  the  day  of  ,  19    . 

O.  N, 

Referee. 


No.  46. 

Notice  of  Motion  to  Confirm  Report  and  to 

Distribute  Surplus. 

[Title  of  the  action]. 

Sirs. — Take  notice,  that  the  report  of  O.  N.,  Esq.,  the  referee 
appointed   herein   to   ascertain    and   report   the    amount    due    to 


APPENDIX    OF    FORMS.  1717 

D.  B.,  and  to  any  other  person,  who  has  a  lien  on  the  surplus 
moneys  in  this  action,  and  to  ascertain  the  priorities  of  the 
several  liens  thereon,  was  this  day  duly  filed  in  the  office  of 
the  clerk  of  the  county  of 

Also  that  upon  said  referee's  report,  and  upon  the  testimony 
and  papers  annexed  thereto,  the  claimant  D.  B.,  will  apply  to 
this  court,  at  a  term  thereof,  to  be  held  at  ,  on  the 

day  of  ,  19     ,  at  the  opening  of  court  on  that  day,  or  as 

soon  thereafter  as  counsel  can  be  heard,  for  an  order  confirming 
said  report,  and  directing  the  treasurer  of  county  to  pay  to 

the  claimant  D.  B.,  or  to  his  attorney,  the  sum  of  dollars, 

with  interest  thereon,  from  the  day  of  ,  19     ,  the  date 

of  said  report,  out  of  said  surplus  moneys,  together  with  an 
allowance  by  way  of  costs  in  this  proceeding,  and  for  such  other 
and  further  relief  as  may  be  just. 

Dated  the  day  of  ,  19    . 

R.  A., 
Attorney  for  said  Claimant,  D.  B. 
To 

[Names  of  all  parties  to  whom  the  sub  puna  in  Form  No.  db 
was  addressed^. 


No.  47. 

Order  Confirming  Report  of  Referee  and  Directing  Dis- 
tribution of  Surplus  Moneys. 

At  a  term,  etc. 

Present :  Hon.  ,  Judge. 

[Title  of  the  action']. 

On  the  report  of  O.  N.  Esq.,  the  referee  appointed  herein  to 
ascertain  and  report  the  amount  due  to  D.  B.,  and  to  any  other 
person,  which  amount  is  a  lien  on  the  surplus  moneys  in  this 
action,  and  to  ascertain  the  priorities  of  the  several  liens  thereon, 
which  report  was  dated  the  day  of  ,  19     ,  and  filed  in 

the  office  of  the  clerk  of  this  court,  on  the  day  of 

19  ,  and  on  all  of  the  testimony  and  papers  annexed  to  said 
report  and  filed  therewith ;  and  it  appearing  that  due  notice  of 
the  filing  of  said  report  and  of  this  motion  has  been  given  to  the 


1718  APPENDIX    OF    FORMS. 

attorneys  for  the  parties  who  have  appeared  in  this  proceeding 
and  who  filed  notices  of  claim  to  such  surplus  moneys  previous 
to  the  entry  of  said  order  of  reference,  and  after  hearing  R.  A., 
attorney  for  the  claimant  D.  B.,  in  support  of  this  motion,  and 
P.  S.,  attorney  for  the  claimant  G.  D.,  in  opposition  thereto,  it  is 
Ordered,  that  the  said  report  be,  and  the  same  hereby  is,  in  all 
things  confirmed  and  that  the  treasurer  of  county  pay  out 
and  distribute  the  moneys  in  his  hands  to  the  credit  of  this  ac- 
tion, after  deducting  therefrom  the  fees  and  commissions  allowed 
to  him  by  law,  as  follows  and  in  the  following  order  of  priority  : 

I.  That  he  pay  to  O.  N.,  Esq.,  referee  in  this  proceeding,  the 
sum  of  dollars,  for  his  fees  as  such  referee. 

II.  That  he  pay  to  R.  A.,  attorney  for  the  claimant  D.  B.,  the 
sum  of  dollars,  as  an  allowance  by  way  of  costs  in  this  pro- 
ceeding. 

III.  That  he  pay  to  the  claimant  D.  B.,  or  to  his  attorney  R. 
A.,  the  sum  of  dollars,  and  interest  thereon  from  the  day 
of           ,  19     ,  the  date  of  said  referee's  report. 

IV.  That  he  pay  to  the  claimant  C.  R.,  or  to  his  attorney  P.  S., 
the  sum  of  dollars,  and  interest  thereon  from  the  day 
of           ,  19     ,  the  date  of  said  referee's  report. 

V.  That  he  pay  to  the  claimant  C.  D.,  or  to  his  attorney  J.  Z., 
the  balance  of  said  surplus  moneys. 


No.  48. 
Complaint  in  Action  for  Strict  Foreclosure. 

\Title  of  the  actioii]. 

{^Commence  as  in  complaint  in  action  to  foreclose  by  a  sale, 
follozving  Form  No.  1  to  and  including  paragraph  VI.,  so  far  as 
that  form  may  apply]. 

That  hereafter  the  said  E.  F.  commenced  an  action  in  the 
court,  in  the  county  of  ,  against  C.  D.,  M.  D.  and  J.  H., 

for  the  foreclosure  of  the  said  mortgage  and  for  a  sale  of  said 
mortgaged  premises,  to  satisfy  and  discharge  said  indebtedness ; 
that  such  proceedings  were  had  in  said  action  that,  on  the 
day  of  ,  19     ,  it  was  duly  ordered  and  adjudged  by  the  said 

court,   that   the   said   mortgaged   premises,   or   so   much   thereof 
as  might  be  necessary  to  raise  the  amount  then  due  to  the  said 


APPENDIX    OF    FORMS.  1719 

E.  F.,  for  principal,  interest  and  costs,  and  which  might  be  sold 
separately  without  material  injury  to  the  parties  interested,  be 
sold  at  public  auction,  in  the  county  of  ,  by  and  under  the 

•direction  of  J.  R.,  Esq.,  counselor  at  law,  who  was  duly  appoint- 
ed referee;  that  subsequently  to  the  entry  of  said  judgment,  and 
in  pursuance  thereof,  the  said  referee  duly  sold  said  mortgaged 
premises  at  public  auction  to  this  plaintiff,  and  this  plaintiff  duly 
paid  to  him  the  purchase  money  therefor  and  received  from  him 
a  deed  of  conveyance  thereof,  all  of  which  will  more  fully  appear 
by  said  deed  of  conveyance,  which  was,  on  the  day  of 
19     ,  duly  recorded  in  the  office  of  the  clerk  of  county,  in 

book  No.        of  deeds,  at  page      ,  by  the  report  of  sale  of  said 
referee,  which  was  duly  filed  in  the  office  of  said  clerk,  on  the 
day  of  ,  19     ,  and  by  the  order  of  said  court  confirming 

said  report  of  sale,  which  was  duly  entered  in  said  action,  on  the 
day  of  ,  19     . 

That  under  said  foreclosure  and  sale  and  the  said  deed  of 
conveyance  of  said  referee,  executed  in  pursuance  of  said  judg- 
ment, the  plaintiff  entered  into  possession  of  said  mortgaged 
premises  and  the  receipt  of  the  rents  and  profits  thereof,  and 
has  since  continued  and  still  is  in  possession  thereof ;  that  he  then 
believed  he  had  acquired,  under  said  foreclosure,  a  perfect  title 
to  the  said  mortgaged  premises,  free  from  all  liens  and  incum- 
brances, but  that  he  has  since  been  informed,  and  believes,  that 
the  defendant  ,  has,  or  claims  to  have,  an  interest  in  or 

a  lien  upon  the  said  premises  by  virtue  of  a  certain  mortgage 
[describe  it] ,  the  lien  of  which  mortgage  was  and  is  inferior  and 
subsequent  to  the  lien  of  the  mortgage  under  which  said  fore- 
closure sale  was  made. 

That  this  plaintiff  is  advised  that  he  has  acquired  by  said  fore- 
closure the  title  to  the  said  mortgage  under  which  said  sale  was 
had,  and  also  the  right  which  C.  D.  and  M.  D.,  his  wife,  who 
were  defendants  in  said  action,  had  to  redeem  from  the  mortgage 
held  or  claimed  by  the  plaintiff",  the  said  C.  D.  being,  at  the  time 
of  the  commencement  of  said  foreclosure,  the  owner  in  fee  of  the 
title  and  equity  of  redemption  of  said  premises ;  that  the  amount 
which  was  due  and  owing  to  the  plaintiff  in  said  action  on  the 
said  mortgage,  at  the  time  of  the  entry  of  said  decree  of  fore- 
closure and  sale,  exclusive  of  the  costs  and  expenses  of  said 
action,  and  of  said  sale,  was  the  sum  of  dollars,  and  interest 

thereon  from  the  day  of  ,  19     ,  no  part  of  which  has 

been  paid,  except  as  it  was  paid  by  the  proceeds  of  said  sale, 
under  which   this  plaintiff  claims. 


1720  APPENDIX    OF    FORMS. 

That  this  plaintiff  has  laid  out  and  expended  large  sums  for 
permanent  improvements  and  repairs  upon  said  premises,  to  wit : 
[Describe  the  improvements  and  state  their  cost  and  valne'\. 

That  the  rents  and  profits  received  by  this  plaintiff  from  said 
premises,  have  not  been  so  great  in  amount  as  the  annuol  interest 
on  said  mortgage,  under  which  said  foreclosure  was  had,  and  have 
not  amounted  to  more  than  the  sum  of  dollars ;  that  the 

plaintiff  claims  that  the  amounts  paid  by  him  for  taxes,  assess- 
ments and  repairs,  and  the  value  of  the  permanent  improvements 
made  by  him  as  aforesaid,  should  be  allowed  to  him  and  added 
to  the  amount  of  said  mortgage  and  interest  thereon,  and  that 
there  is  now  due  and  owing  to  him  thereon,  the  svim  of  dol- 

lars. 

That  the  plaintiff  has   applied  to   said  defendant  ,   and 

requested  him  to  pay  the  plaintiff  the  said  sums  so  due  on  the 
said  mortgage  held  by  the  plaintiff,  or  to  come  to  an  accounting 
with  him  thereon,  and  after  the  proper  charges  and  credits,  to 
pay  to  the  said  plaintiff  what  should  appear  to  be  due  him  on  the 
said  mortgage ;  or,  in  default  thereof,  to  release  his  right  and 
equity  of  redemption  in  the  said  mortgaged  premises ;  but  that 
the  said  defendant  has  hitherto  refused,  and  still  refuses  so  to 
do,  or  to  comply  with  any  part  of  said  plaintiff's  request. 

Wherefore,  the  plaintiff  demands  judgment,  that  an  account 
may  be  taken  of  what  is  due  and  owing  to  the  plaintiff  for  prin- 
cipal and  interest  on  said  mortgage,  and  that  an  account  may  also 
be  taken  of  the  rents  and  profits  of  the  said  mortgaged  premises 
which  have  been  received  by  the  plaintiff,  and  also  of  the  ex- 
penditures of  the  plaintiff  for  permanent  improvements  and  re- 
pairs, and  for  taxes  and  assessments. 

That  the  said  defendant  pay  to  the  plaintiff  what  may  be  due 
him  on  taking  the  said  account,  with  the  costs  of  this  action, 
within  a  time  to  be  appointed  by  the  court  for  that  purpose ;  or, 
in  default  thereof,  that  the  said  defendant  and  all  persons  claim- 
ing under  him  be  absolutely  barred  and  foreclosed  of  and  from 
all  right,  title  and  equity  of  redemption  in  and  to  the  said  mort- 
gaged premises,  and  each  and  every  part  thereof,  and  that  the 
plaintiff  have  such  other  or  further  relief,  or  both,  in  the  prem- 
ises as  may  be  just  and  equitable. 

T.  R., 

Plaintiff's  Attorney. 

[Add  verification  in  the  usual  form]. 


APPENDIX    OF    FORMS.  1721 

No.  49. 
Judgment  for  Strict  Foreclosure. 

At  a  term,  etc. 

Present :  Hon.  ,  Judge. 

[Title  of  the  action'\. 

[Commence  by  reciting  the  proceedings  in  the  action,  which 
will  be  similar  to  Form  No.  //.  In  all  cases,  an  affidavit  of  filing 
the  notice  of  pendency  of  action,  similar  to  Form  No.  9,  must 
be  furnished  when  applying  for  judgment,  and  should  be  recited. 
The  follozving  will  be  the  essential  parts  of  the  judgment']: 

It  is  adjudged  that,  upon  the  defendant's  paying  unto  the  said 
plaintiff  the  amount  which  is  so  found  and  reported  due  to  him, 
as  aforesaid,  with  interest  thereon,  from  the  date  of  said  report, 
together  with  the  further  sum  of  dollars,  and  interest,  from 
this  date,  which  is  hereby  adjudged  to  the  plaintiff  for  his  costs 
and  charges  in  this  action,  within  six  months  after  the  entry  of 
this  judgment,  and  service  of  notice  thereof  upon  the  attorney 
for  the  defendant,  said  payment  to  be  made  at  the  office  of  T.  R., 
Esq.,  attorney  for  the  plaintiff,  No.  street,  in  the 

of  ,  between  the  hours  of  10  a.  m.  and  3  p.  m.  of  any  busi- 

ness day,  on  or  before  the  expiration  of  the  said  six  months,  and 
which  said  day  shall  have  been  named  by  the  said  defendant  in  a 
notice  in  writing,  to  be  served  by  him  on  said  attorney  for  the 
plaintiff,  not  less  than  five  days  prior  to  said  date ;  the  said  plain- 
tiff do  then  convey  the  said  mortgaged  premises  to  the  said  de- 
denfant,  by  a  suitable  and  proper  deed  of  conveyance,  to  be 
approved  by  this  court,  in  case  the  parties  cannot  agree  upon  the 
form  thereof,  free  and  clear  of  all  incumbrances  suffered  by  him, 
or  by  any  person  claiming  by,  from  or  under  him,  (and  with  the 
usual  covenants  against  his  and  their  acts)  ;  and  that  he  deliver 
up  all  deeds  and  writings  in  his  custody  relating  thereto,  upon 
oath,  to  the  said  defendant,  or  to  whomsoever  he  may  appoint  to 
receive  the  same ;  and  further,  that  the  said  plaintiff  execute  and 
acknowledge  a  certificate  to  cancel  and  discharge  said  mortgage 
of  record.  But  in  default  of  the  said  defendant's  paying  unto 
the  plaintiff  such  principal,  interest  and  costs,  as  aforesaid,  by 
the  time  limited  for  that  purpose,  then  it  is  adjudged  that  the 
said  defendant,  and  all  persons  claiming  by,  from  or  under  him, 
after  the  filing  of  the  aforesaid  notice  of  pendency  of  this 
action,  do  stand  and  be   forever  barred  and   foreclosed  of  and 


1722  APPENDIX    OF    FORMS. 

from  all  right,  title,  interest  and  equity  of  redemption  in  and  to 
the  said  mortgaged  premises,  and  every  part  thereof. 

The  following  is  a  description  of  the  said  mortgaged  premises 
herein  mentioned:     [Insert  description]. 


No.  50. 
Order  Extending  Time  for  Redemption. 

At  a  term,  etc. 

Present :  Hon.  ,  Judge. 

[Title  of  the  action]. 

On  reading  and  filing  the  affidavit  of  the  defendant,  and  notice 
of  this  motion,  with  proof  of  the  due  service  thereof,  and  on  all 
of  the  papers  and  proceedings  herein ;  and,  after  hearing  M.  N., 
attorney  for  said  defendant,  on  his  motion,  and  T.  R.,  attorney 
for  the  plaintiff,  in  opposition  thereto,  it  is 

Ordered,  that  the  time  granted  to  the  said  defendant  ,  in 

and  by  the  judgment  entered  in  this  action,  on  the  day 

of  ,  19     ,  and  within  which  time  he  was  required  to  redeem 

the  mortgaged  premises  by  paying  the  amount  due  to  the  plain- 
tiff for  principal,  interest  and  costs  or  stand  foreclosed,  be, 
and  the  same  is  hereby  extended  and  enlarged  for  months, 

upon  condition  that  the  said  defendant  shall,  within  ten  days 
after  the  entry  of  this  order,  pay  to  the  plaintiff  the  sum  of 
dollars,  costs  of  this  motion. 


No.  51. 
Final  Order  in  Strict  Foreclosure. 

At  a  term,  etc. 

Present :  Hon.  ,  Judge. 

[Title  of  the  action]. 

Upon  the  judgment  entered  in  this  action,  on  the  day 

of  ,  19     ,  and  on  reading  and  filing  the  notice  of  the  entry 


APPENDIX   OF   FORMS.  1723 

of  said  judgment,  with  due  proof  of  the  service  thereof  on  the 
defendant,  and  upon  the  affidavit  of  the  plaintiff  showing  that 
the  defendant  has  not  paid  the  amount  due  to  the  plaintiff  for 
principal,  interest  and  costs,  or  any  part  thereof,  though  more 
than  six  months  have  expired  since  the  said  service  of  the  notice 
of  the  entry  of  said  judgment  as  aforesaid;  and  on  due  notice  of 
this  motion,  with  due  proof  of  the  service  thereof ;  and  after 
hearing  T.  R.,  attorney  for  the  plaintiff,  in  support  of  this  motion, 
and  M.  N.,  counsel  for  the  defendant,  in  opposition  thereto,  it  is 
Ordered,  that  the  said  defendant  ,  and  all  persons  claim- 

ing under  him,  after  the  filing  of  the  notice  of  the  pendency  of 
this  action,  stand  and  be  forever  absolutely  barred  and  fore- 
closed of  and  from  all  right,  title,  interest  and  equity  of  redemp- 
tion in  the  mortgaged  premises  described  in  said  judgment,  and 
in  each  and  every  part  thereof. 


No.  52. 
Notice  of  Sale  on  Foreclosure  by  Advertisement. 

Whereas,  default  has  been  made  in  the  payment  of  the  money 
secured  by  a  mortgage  dated  the  day  of         ,  19     ,  executed 

by  C.  D.  and  j\I.  D.,  his  wife,  of  ,  to  E.  F.,  of  the  same 

place,  which  mortgage  was  recorded  in  the  office  of  the  clerk 
of  the  county  of  ,  on  the  day  of  ,  19     ,  at       o'clock 

M.,  in  book  No.  of  mortgages,  at  page  ,  (and  which 

said  mortgage  was  assigned  by  the  said  E.  F.  to  H.  O.,  by  an 
assignment  of  mortgage  dated  the  day  of  ,  19     ,  and 

recorded  in  the  county  clerk's   office,   in  book   No.  of 

assignments  of  mortgages,  at  page  ,  on  the  day  of         , 

19     ,  and  the  said  H.  O.  is  now  the  owner  and  holder  thereof). 

And  whereas,  the  amount  claimed  to  be  due  on  said  mortgage 
at  the  time  of  the  first  publication  of  this  notice,  is  the  sum 
of  dollars,  as  follows  :    the  sum  of  dollars  principal, 

and  the  sum  of  dollars  interest,  which  said  sum  of 

dollars   is   the  whole   amount  claimed   to   be   unpaid   upon   said 
mortgage. 

Now,  therefore,  notice  is  hereby  given  that,  by  virtue  of  the 
power  of  sale  contained  in  said  mortgage,  and  duly  recorded,  as 
aforesaid,  and  in  pursuance  of  the  statute  in  such  case  made 


1724  APPENDIX    OF    FORMS. 

and  provided,  the  said  mortgage  will  be  foreclosed  by  the  sale  of 
the   premises   therein   described,   at  public   auction,   at  ,   in 

the  city  of  ,  in  the  county  of  ,  on  the  day  of  , 

19     ,  at  o'clock  in  the  noon  of  that  day. 

The  said  premises  are  described  in  said  mortgage  as  follows : 
[Insert  description']. 

E.  F.,  Mortgagee, 
(or  Assignee  of  Mortgage). 
T.  R.,  Attorney  for  Mortgagee, 

(or  Assignee). 


No.  53. 
Notice  of  Sale  on  Foreclosure  by  Advertisement. 

Short  Form. 

Mortgage  Sale. — Mortgagors  C.  D.  and  M.  D.,  his  wife; 
mortgagee  E.  F. ;  assignee  H.  O. ;  second  assignee  and  present 
owner  and  holder  of  the  mortgage,  G.  H.     Mortgage  dated  , 

19     ,  and  recorded  in  the  office  of  the  clerk  of  county,  on 

the  day  of  ,  19     ,  in  book  No.  of  mortgages,  at  page 

.    The  amount  claimed  to  be  due  upon  said  mortgage  at  the 
date  of  the  first  publication  of  this  notice,  is  the  sum  of 
dollars. 

Default  having  been  made  in  the  payment  of  the  moneys 
secured  by  said  mortgage,  and  no  suit  or  proceedings  at  law  or 
otherwise,  having  been  commenced  to  recover  said  mortgage 
debt,  or  any  part  thereof ;  now,  therefore,  notice  is  hereby  given 
according  to  the  statute  in  such  case  made  and  provided,  that  by 
virtue  of  the  power  of  sale  contained  in  said  mortgage,  and  duly 
recorded  therewith  as  aforesaid,  the  said  mortgage  will  be  fore- 
closed by  a  sale  of  the  premises  therein  described,  by  the  sub- 
scriber, at  public  auction,  at  ,on  the  day  of  ,  19  , 
at        o'clock  in          noon  of  that  day. 

The  said  premises  are  described  in  said  mortgage  as  follows: 
[Insert  description]. 

Dated  the  day  of  ,  19     . 

G.  H., 

Assignee  of  Mortgage. 

T.  R., 

Attorney. 


APPENDIX    OF    FORMS.  1725 

No.  54. 
Affidavit  of  Affixing  Notice  by  County  Clerk. 
County  of  ,  ss.: 

R.  S.,  being  duly  sworn,  says  that  he  is  clerk  of  the  county 
of  ,  that  being  the  county  in  which  the  mortgaged  premises 

described  in  the  annexed  printed  notice  of  foreclosure  and  sale 
are  situated ;  that  on  the  day  of  ,  19     ,  he  received  a 

printed  copy  of  the  annexed  notice  of  sale,  and  that  immediately, 
to  wit :  on  the  same  day,  he  affixed  the  same  in  a  book  prepared 
and  kept  by  him  for  that  purpose,  and  also  immediately  entered 
in  said  book  a  minute  at  the  bottom  of  such  notice,  of  the  time 
of  receiving  and  affixing  the  same,  duly  subscribed  by  deponent 
as  clerk  as  said  county ;  and  that  he  also  immediately  indexed 
the  same  against  the  name  of  the  mortgagor,  in  said  notice  named. 

Deponent  further  says,  that  the  time  when  he  did  and  per- 
formed said  acts,  was  at  least  eighty-four  days  before  the  day  of 
sale  in  said  notice  specified  for  the  sale  of  the  mortgaged  prem- 
ises therein  described. 

[Jurat].  R.  S. 


No.  55. 

Affidavit  of  Affixing  Notice  of  Sale  to  Outer  Door  of 

Court  House. 

County  of         ,  ss.: 

,  being  duly  sworn,  says  that  he  resides  at  ,  and 

is  more  than  twenty-one  years  of  age ;  that  on  the  day 

of  ,  19     ,  and  at  least  eighty-four  days  prior  to  the  time 

specified  in  the  annexed  printed  notice  of  foreclosure  for  the  sale 
of  the  mortgaged  premises  therein  described,  he  fastened  up  a 
printed  copy  of  said  notice  in  a  conspicuous  place  and  in  a  proper 
and  substantial  manner,  at  or  near  the  entrance  of  the  court  house 
or  building,  in  the  county  of  ,  where  the  county  courts  are 

directed  to  be  held  in  and  for  said  county  of  ,  which  is  the 


1726  APPENDIX    OF    FORMS. 

county   in   which    said   mortgaged   premises    are    situated,    that 
being  the  building  in  which  the  courts  in  said  county  are  directed 
to  be  held,  nearest  to  the  mortgaged  premises. 
[/«ra/]. 


No.  56. 

Affidavit  of  Publishing  Notice  of  Sale. 

County  of         ,  ss.: 

,  being  duly  sworn,  says  that  he  resides  in  the  city  of  , 

in  the  county  of  ,  and  is  more  than  twenty-one  years  of  age ; 

that  during  the  time  of  the  publication  of  the  notice  hereinafter 
mentioned,  he  was  (the  foreman  of)  the  printer  of  the  , 

a  newspaper,  printed  and  published  at  ,  in  said  county 

of  ,  that  being  the  county  in  which  the  premises  described 

in  the  annexed  printed  notice  of  sale,  or  a  part  thereof,  are  sit- 
uated. 

Deponent  further  says  that  the  notice  of  the  mortgage  sale,  a 
printed  copy  of  which  is  hereto  annexed,  was  published  in  said 
newspaper  at  least  once  in  each  of  the  twelve  weeks  immediately 
preceding  the  day  of  sale  in  said  notice  mentioned,  said  publica- 
tion having  been  commenced  on  the  day  of  ,  19  ,  and 
ended  on  the  day  of  ,  19  .  [//  th-ere  have  been  ad- 
journments, add^ :  and  deponent  further  says  that  the  notice 
of  postponement  annexed  to  said  notice  was  also  published  in  said 
newspaper,  on  the  day  of  ,  19  ,  and  on  the  day 
of  ,  19  ,  in  the  form  shown  in  said  annexed  printed  copy 
thereof. 

{Juraf^ 


No.  57. 

Affidavit  of  Serving  Notice  of  Sale. 

County  of  ,  ss.: 

,  being  duly  sworn,  says  that  he  resides  at  ,  and 

is  over  twenty-one  years  of  age ;  that  on  the  day  of 


APPENDIX    OF    FORMS.  1727 

19     ,  at  ,  he  served  the  annexed  notice  of  sale  of  ,  by 

delivering  to  and  leaving  with  him,  personallv,  a  true  copv  there- 
of. 

That  deponent  served  the  annexed  notice  of  sale  on  ,  by 

leaving  a  true  copy  thereof,  which  was  legibly  addressed  to  him, 
at  his  dwelling  house,  at  ,  in  the  city  of  ,  in  charge 

of  a  person  of  full  age,  who  received  the  same  for  him. 

That  on  the  day  of  ,  19     ,  he  served  the  said  annexed 

notice  of  sale  upon  each  of  the  following  named  persons  by  depos- 
iting true  copies  thereof  in  the  post-office  at  the  city  of  ,  duly 
enclosed  and  sealed  in  a  post-paid  wrapper  and  directed  to  each 
of  said  persons  at  their  respective  places  of  residence,  as  follows : 
to  ,  at  ;  to  ,  at  ;  to  ,  at  ; 
that  the  postage  on  each  of  said  notices  was  prepaid,  and  that  the 
said  persons  were  known  to  deponent  to  reside  at  the  several 
places  to  which  the  notices  to  them  were  respectively  directed. 

[Jurat], 


No.  58. 

Affidavit  of  Fact  of  Sale. 

County  of  ,  ss.: 

,  being  duly  sworn,   says  that  he  resides  at  ,  in 

the  city  of  ,  in  the  county  of  ,  and  is  over  twenty- 

one  years  of  age ;  that  at         ,  in  the  city  of  ,  in  the  county 

of  ,   on   the  day   of  ,    19       ,    at  o'clock   in 

the  noon  of  that  day,  he  officiated  as  auctioneer  at  the  mort- 

gage foreclosure  sale  of  the  premises  described  in  the  notice  of 
sale,  a  printed  copy  of  which  is  hereto  annexed,  pursuant  to  such 
notice,  and  by  virtue  of  the  power  of  sale  contained  in  the  mort- 
gage, which  is  therein  mentioned:  that  said  sale  took  place  at 
said  time  and  place  and  that  the  whole  of  said  premises  were  then 
and  there  sold  in  one  parcel  to  S.  R.,  for  the  sum  of  dollars, 

he  being  the  highest  bidder  therefor,  and  that  being  the  highest 
sum  bidden  for  the  same. 

Deponent  further  says  that  such  sale  was  at  public  auction,  in 
the  day  time,  and  in  all  respects  honestly,  fairly  and  legally 
conducted,  according  to  deponent's  best  knowledge  and  belief; 


1728  APPENDIX    OF    FORMS. 

that  the  premises,  so  far  as  the  same  consist  of  separate  tracts, 
farms  or  lots,  were  sold  separately,  and  no  more  tracts,  farms  or 
lots  were  sold  than  were  necessary  to  satisfy  the  amount  claimed 
to  be  due  on  said  mortgage  at  the  time  of  such  sale,  together  with 
the  costs  and  expenses  allowed  by  law;  that  the  following  is  a 
description  of  the  premises  sold:  [Insert  description}. 
[Jurat}. 


No.  59. 

Petition  by  Purchaser  Under  Foreclosure  by  Advertise- 
ment to  Obtain  Possession. 

To  the  county  judge  of  the  county  of  : 

The  petition  of  G.  R.,  of  ,  in  the  county  of         ,  respect- 

fully shows : 

That  heretofore  C.  D.,  being  the  owner  of  the  premises  herein- 
after described,  and  being  indebted  to  E.  F.,  in  sum  of  dol- 
lars, upon  his  bond  for  that  sum,  dated  the  day  of  ,  19  , 
and  payable  in  one  year  after  that  date,  with  interest  thereon, 
payable  semi-annually,  executed,  with  M.  D.,  his  wife,  duly 
acknowledged  and  delivered  to  the  said  E.  F.,  a  mortgage,  to 
secure  the  payment  of  said  bond,  bearing  even  date  therewith,  and 
recorded  in  the  office  of  the  clerk  of  the  county  of  ,  in  book 
No.  of  mortgages,  at  page  ,  on  the  day  of  , 
19  ,  whereby  they  granted  and  conveyed  unto  the  said  E.  F.,  the 
following  described  premises,  to  wit :     [Insert  description']. 

That  said  mortgage  contained  a  like  condition  as  the  said  bond, 
and  that  it  also  contained  a  power  of  sale,  whereby  in  case  of 
default  in  the  payment  of  the  said  sum  of  money,  the  interest 
that  might  grow  due  thereon,  or  any  part  thereof,  the  said  E.  F., 
or  his  assigns,  were  duly  empowered  to  sell  said  mortgaged  prem- 
ises in  due  form  of  law,  and  out  of  the  moneys  arising  from 
the  said  sale,  to  pay  the  said  sum  of  money  and  interest,  with  the 
costs  and  expenses  of  the  proceedings  thereupon,  the  surplus,  if 
any,  to  be  returned  to  the  said  mortgagor;  (that  thereafter  the 
said  E.  F.  duly  assigned  said  bond  and  mortgage  to  H.  O.)  ;  that 
thereafter  default  was  made  in  the  payment  of  the  money  secured 
by  the  said  mortgage,  whereupon  the  said  E.  F.  commenced 
proceedings  by  virtue  of  said  power  of  sale  contained  in  said 
mortgage,  and  in  pursuance  of  the  statute  in  such  case  made  and 


APPENDIX    OF    FORMS.  1729 

provided,  to  foreclose  the  said  mortgage,  by  a  sale  of  the  premises 
therein  described,  at  public  auction ;  that  due  notice  of  the  time 
and  place  of  such  sale  was  given,  in  the  manner  required  by 
law  ;  and  that  thereafter,  to  wit :  on  the  day  of  ,  19     , 

the  said  premises  were,  under  the  said  power  of  sale,  duly  sold  to 
and  purchased  by  your  petitioner,  for  the  sum  of  dollars, 

that  being  the  highest  sum  bidden  for  the  same;  that  the  affi- 
davits of  publication  and  of  affixing  the  notice  of  sale,  and  of 
the  service  of  such  notice,  and  of  the  circumstances  of  the  sale, 
showing  such  foreclosure  and  the  proceedings  thereupon,  and 
which  affidavits  are  required  by  law  to  be  made,  were  duly  made, 
and  that  they  were  on  the  day  of  ,  19     ,  duly  filed  in 

the  office  of  the  clerk  of  the  county  of  ,  that  being  the 

county  where  the  said  mortgaged  premises  were  and  are  situated, 
and  where  said  sale  took  place ;  and  that  they  were  also  on  that 
day  duly  recorded  at  length  by  such  clerk,  in  a  book  kept  by  him 
in  said  office  for  the  record  of  mortgages,  in  book  No.  of 

mortgages,  commencing  at  page  ;  that  after  the  title  to  said 

mortgaged  premises  had  been  duly  perfected  in  this  petitioner, 
by  the  filing  and  recording  of  said  affiadvits,  as  aforesaid,  this 
petitioner  demanded  possession  of  the  said  premises  from  the  said 
C.  D.,  who  was  then  and  is  now  in  possession  thereof,  (or  from 
J.  H.,  who  was  then  and  is  now  in  possession  thereof,  claiming 
to  hold  the  same  by  some  right  or  title  derived  from  the  said  C. 
D.,  the  said  mortgagor,  subsequently  to  the  execution  and  deliv- 
ery of  said  mortgage,  by  virtue  of  said  title  under  said  foreclo- 
sure) ;  and  that  the  said  C.  D.  (or  ].  H.)  refused,  and  still 
refuses  to  surrender  said  possession,  and  that  he  holds  over  and 
continues  in  possession  of  the  said  premises  after  the  perfection 
of  said  title  in  said  foreclosure  proceedings  and  after  such  de- 
mand aforesaid,  without  permission  of  this  petitioner,  who  is 
entitled  to  the  possession  thereof. 

Your  petitioner  therefore  prays  for  a  final  order  to  remove  the 
said  C.  D.  (or  J.  H.),  and  all  persons  holding  under  him  from  the 
possession  of  said  premises,  and  for  such  other  or  further  relief 
as  may  be  just,  together  with  the  costs  of  this  proceeding. 

Dated  the  day  of  ,  19     . 

O.    R.,   Attorney   for   Petitioner, 

[Add  verification  in  the  usnal  for)ii]. 
Mortg.  Vol.  II.— 109. 


1730  APPENDIX    OF    FORMS. 

No.  60. 
Precept  to  be  Issued  on  Foreign  Petition. 

Before  the  County  Judge  of  county. 

G.  R., 

Petitioner, 
against 
CD.  (orj.n.), 
In  Possession. 

The  People  of  the  State  of  New  York : 

To  C.  D.,  (or  J.  H.),  above  named,  and  each  and  every  person 
in  possession  of  the  premises  hereinafter  described : 

You,  and  each  of  you,  are  hereby  required  forthwith  to  remove 
from  the  premises  described  as  follows :  [Insert  description'];  or 
to  show  cause  before  me,  the  county  judge  of  the  county  of  , 

at  the  courthouse,  in  the  of  ,  in  the  county  of  , 

aforesaid,  on  the  day  of  ,  19     ,  at  o'clock,  in  the 

noon  of  that  day,  why  the  possession  of  said  preimses  should 
not  be  delivered  to  said  petitioner.' 

Dated  the         day  of  ,  19     . 

[^Signature  of  County  Judge]. 


No.  61. 
Final  Order  in  Summary  Proceedings. 
[Title  as  in  precept]. 

The  petitioner,  G.  R.,  having  appeared  on  the  day  of         , 

19  ,  and  the  precept  issued  herein  having  then  been  returned 
with  due  proof  of  the  service  thereof,  and  the  petitioner  having 
then  demanded  possession  of  the  premises  described  in  his  peti- 
tion, which  petition  was  dated  and  verified  on  the  dav 
of          ,  19     . 

8  In  New  York,  if  the  precept  is  served  otherwise  than  personally,  § 
2241  of  the  Code  of  Civil  Procedure,  must  be  indorsed  thereon. 


APPENDIX    OF    FORMS.  1731 

And  the  respondent,  C.  D.,  in  possession,  having  then  also 
appeared  by  his  attorney  and  filed  his  verified  answer  to  said 
petition,  and  the  issue  thus  made  having  been  duly  tried  before 
the  said  county  judge  without  a  jury,  who,  after  hearing  the 
allegations  and  proofs  of  the  parties,  rendered  his  decision  in 
favor  of  the  petitioner. 

Now,  therefore,  on  motion  of  O.  R.,  attorney  for  the  petitioner, 
final  order  is  hereby  made  in  favor  of  said  petitioner,  award- 
ing to  said  petitioner  the  delivery  of  the  premises  described  in 
said  petition,  by  reason  of  the  facts  therein  alleged  and  set  forth» 
together  with  the  sum  of  dollars  costs. 

Dated  the  day  of  ,  19    . 

[^Signature  of  County  JudgeJ. 


No.  62. 

Warrant  to  Obtain  Possession  in  Summary  Proceedings. 

To  the  sheriff  of  the  county  of  ,  or  to  any  constable  of  said 

county  of         ,  Greeting: 

Whereas,  G.  R.,  has  heretofore  presented  to  me  his  verified 
petition,  alleging  that  heretofore  C.  D.,  being  the  owner  of  the 
premises  hereinafter  described,  and  being  indebted  to  E.  F.  in 
the  sum  of  dollars,  upon  his  bond  for  that  sum,  dated  on 

the  day  of  ,  18     ,  and  payable  in  one  year  after  said 

date  with  interest  thereon  payable  semi-annually,  executed, 
with  M.  D.,  his  wife,  acknowledged  and  delivered  to  said  E.  F. 
a  mortgage,  to  secure  the  payment  of  said  bond.  [Follozv  sub- 
stantially the  language  of  the  petition  in  Form  No.  59]. 

Whereupon  I  issued  a  precept  requiring  the  said  C.  D.  (or 
J.  H.),  and  each  and  every  person  in  possession  of  said  premises, 
forthwith  to  remove  from  the  said  premises,  or  to  show  cause 
before  me,  at  a  certain  time  now  past,  why  the  possession  of 
said  premises  should  not  be  delivered  to  the  said  G.  R. ;  [//  am 
answer  has  been  interposed  and  a  trial  had,  recite  tlic  proceed- 
ings as  in  Form  No.  61],  and  no  good  cause  having  been  shown,, 
or  in  any  way  appearing  to  the  contrary,  and  due  proof  of  the 
service  of  such  precept  having  been  made  to  me,  and  I  having 
made  a  final  order  awarding  the  possession  of  said  premises  to 
said  petitioner,  with  the  sum  of  dollars  costs. 

Now,  therefore,  in  the  name  of  the  People  of  the  state  of  New 


1732  APPENDIX    OF    FORMS. 

York,  you  are  hereby  commanded  to  remove  all  persons  from 
said  premises,  and  to  put  the  said  G.  R.  into  the  full  possession 
thereof. 

In  witness  whereof,  I  have  subscribed  these  presents  this 
day  of  ,  19     . 

[Signature  of  County  Judge'\. 


No.  63. 
Sheriff's  or  Constable's  Return  Upon  the  Warrant. 

Pursuant  to  the  command  of  the  within  warrant,  I  have  this 
day  put  the  said  G.  R.  into  the  full  possession  of  the  premises 
therein  mentioned. 

Dated  the  day  of  ,  19     . 

[Signature  of  Sheriff  or  Constable^. 

[To  be  indorsed  on  the  preceding  warrantl^. 


TABLE  OF  CASES. 


A. 

Aaron,  Succession  of,  848. 
Abbe  V.  Goodwin,  1136. 

V.  Newton,  402. 
Abbott  V.  Allen,  421,  422,  423,  448, 
495,  496,  500. 

V.  Banfield,  930. 

V.  Curran,  266,  618,  703. 

V.  Godfrey's   Heirs,   161. 

V.  Peck,  574. 

V.  Stone,    516. 
Abel  V.  Heathcote,  667. 
Abell  V.  Screech,  1019. 
Aberdeen  First   Nat.   Bank  v.  An- 
drews, 855. 
Abraham  v.  Chenoweth,  1025,  1090. 

V.  Mayer,    146. 
Abrahams  v.   Berkowitz,   817. 

V.  Claussen,  409. 
Abrams  v.  Taintor,  127. 
Acker  v.   Acker,   1251. 

V.  Hauteman,  259. 
Ackerly  v.  Villas,  450. 
Ackerman  v.  Hunsicker,  868,   1174. 
Ackerson  v.  Lodi   Branch  R.   Co., 

54,  106,  201. 
Ackla  V.  Ackla,  476. 
Ackland  v.  Gravener,  811. 
Ackley  v.  Tarbox,  267. 
Adair  v.   ]\Iergcntheim,   196,  213. 

V.  Wright,  823. 
Adams  v.  Bartell,  155. 

V.  Bradley,  145,   146. 

V.  Brown,  457,   1173. 

V.  Curtis,   267. 


Adams   v   Edgerton,    136 

V.  Essex,  50,  54,  327,  752. 

V.  Fry,  495. 

V.  Green,  121. 

V.  Hackensack  Imp.  Co.,  344. 

V.  Haskell,  619,  626. 

V.  Holden,   1247,   1248. 

V.  Hudson  County  Bank,  1058. 

V.  McKenzie,  1178. 

V.  McPartlin,  209,  210,  332,  526. 

V.  Myers,   994,   997. 

V.  Parker,   93. 

V.  Paynter,  127.  179. 

V.  Robertson,  411. 

V.  Rowan,  412. 

V.  Sayre,  1219.  1220,  1241. 

V.  St.  Johnsbury  &  Lake  Cham- 
plain  R.  Co.,  294. 
Adams  &  Freeze  Co.  v.  Kenoyer,  78. 
Adams   Express  Co.  v.  Hoey,  660.. 
Adamson   v.    Smith,    76. 
Addison  v.  Crow,  ISO. 
Aderholdt  v.  Henry,  600. 
Adkins  v.  Edwards,  558. 
Adler,  David  &  Sons  Clothing  Co. 

V.  Hellman,  541,  618. 
.(Etna    Life    Ins.    Co.    v.    Beckman^ 
1087. 

V.  Broeker,  762.  793. 

V.  Finch,  100.  335,  340.  442. 

V.  Stryker.  139.  1107.  1111,  1220. 

V.  Wartaszewski,  547. 
Agate  V.  Keen,  447. 

V.  King,  442. 
Aggar  V.  Rickerell,  1249. 
Aggas  V.   Pickerell,  83. 


1733 


1734  TABLE    OF 

References  are 
Agricultural    Ins.    Co.    v.    Barnard, 

174,  612. 
Ahrend  v.  Odiorne,  330. 
Aiken  v.  Bradford,  1105. 
V.  Bruen,  584. 
V.  Bridgeford,  1040. 
V.  Gale,  1208,  1209. 
V.  Milwaukee  &  St.  P.  R.  Co., 

584,   1209. 
V.  Morris,  421. 
Aikin  v.  Peay,  53. 
Aikman  v.  Harsell,  880. 
Ainslie  v.  Medlycott,  424. 
Alabama  &  Vicksburg  Ry.   Co.   v. 
Thomas,  179,  365,  645,  649. 
Alabama  Life  Ins.  &  T.  Co.  v.  Pett- 

way,   18,  132. 
Albany  City  Bank  v.  Schermerhorn, 

783. 
Albany  City  Savings  Inst.  v.  Bur- 
dick,  244,  400.  750. 
Albany  Fire  Ins.   Co.  v.   Bay,   153, 

169. 
.Albee  v.  Curtis,  1087. 
.Albert  v.  Grosvenor  Investment  Co. 

54,  70,  466. 
Albright  v.  Cobb,  120. 
Albritton    v.    Lott-Blacksher    Com. 

Co.,  793. 
Alden  v.  Boston  H.  &  E.  R.  Co.,  765. 

V.  Pryal,  422,  423,  1003. 
Alderton  v.  Conger,  446. 
Aldrich  v.  Aldrich,  468. 

V.  Bank  of   Ohiowa,  717. 

V.  Cooper,  601. 

V.  Lapham,   174,  341,  348,  352, 

362. 
T.  Lewis,   627. 
V.  Reynolds,  946,  947,  950. 
V.  Sharp,   725. 
V.  Stephens,  147,  152. 
V.  Thompson,  985. 
V.  Wood,  409. 
Aldus  V.   Cornwall,  399. 
Alexander  v.  Aronson,  382. 
V.  Bouton,  426. 
V.  Frary,    161,    235. 
V.  Greenwood,  182,  667,  670. 


CASES. 

to  Sections. 

Alexander  v.  Grover,  683. 

V.  Howe,    558. 

V.  Manning,   766. 

V.  Messervey,   547,   917. 

V.  Rea,   432. 

V.  Rice,  120,  125. 

V.  Rodriguez,   1044,   1047,   1048, 
1049,  1102,  1155,  1157,  1166. 
Alexandria  v.  Saloy,   1003. 
Alfred  v.  Bank  of  Hazelton,  540. 
Alkinson  v.-  Greaves,  683. 
Allan  V.  Manitoba  &  N.  W.  R.  Co., 

18. 
Allen,  ex  parte,  906. 
Allen  V.  Allen,  220,  227,  242,  246, 
528,  743. 

V.  Atchinson,  1114. 

V.  Brown,    92. 

V.  Case,  183. 

V.  Chapman,  962. 

V.  Clark,  584,  855,   1066,   1209. 

V.  Culver,  473. 

V.  Everly,   76. 

V.  Jacquish,  466. 

V.  Knight,   127. 

V.  Lathrop,  452. 

V.  Maer,  44. 

V.  Malcolm,  271. 

V.  Mandaville,  367. 

V.  Manitoba,  18. 

V.  Morris,  1114. 

V.  Parker,  752. 

V.  Pierce,  11. 

V.  Poole,  395,  614,  655. 

V.  Robbins,  1012,  1013. 

V.  Shackleton,    421,    423,    429, 
440,  448. 

V.  Swoope,  1113. 

V.  Wayne  Circuit  Judges,  894, 
895. 

V.  Wood,   327. 
Allendorph  v.  Ogden,  38,  284. 
Allen-West     Commission     Co.     v. 

Brashear,  28. 
AlHs  v.  Insurance  Co.,  1242. 

V.  Moore,  1251. 

V.  Northwestern    Mut.    L.    Ins. 
Co.,  1135. 


TABLE    OF    CASES. 
References  are  to  Sections. 


1735 


Allison  V.  Armstrong,  482,  516. 
V.  Looms,  1145. 
V.  Schmitz,  276. 
Almy  V.  Wilbur,  75,  80.     . 
Alsup  V.  Stewart,  147. 
Alton-Dawson    Mercantile    Co.    v. 

Staten,  401,  421. 
Alven  V.  Bond.  788. 
Alvord  V.  Beach,  711,  721. 
American  Bridge  Co.  v.  Heidelbach, 

795. 
American   Buttonhole,   etc.,   Co.   v. 

Burlington       Mut.       Loan 

Assoc,  180,  184,  1074,  1205, 

1231,  1244. 
American  Exchange  Bank  v.  Smith, 

523. 
American  Freehold  Land  Mortgage 

Co.  V.  McCall,  9. 
V.  Moody,  983. 
V.  Pollard,     1182,     1183,     1189, 

1206. 
V.  Sewell,  1107. 
American  Guild  of  Richmond  Va. 

V.  Damon,  446. 
American    Insurance    Company    v. 

Gibson,  967. 
V.  Oakley,    570,    618,   620,   622, 

624,  626,  627,  637,  640,  679. 
V.  McWhorter,   400. 
American  Life  Ins.  Co.  v.  Ryerson, 

327. 
American  Life  &  Fire  Ins.  &  Trust 

Co.  V.  Ryerson,  567,  570. 
American  Life  Ins.  &  Trust  Co.  v. 

Van   Epps,   839. 
American  Loan  &  Trust  Co.  v.  At- 
lanta Electric  Ry.  Co.,  1105, 

1220. 
V.  Union  Depot  Co.  39,  43,  64. 
American   Mortgage    Co.   v.    King, 

401. 
Amer.  Nat.  Bank  v.  N.  W.  Mut.  L. 

Ins.  Co.,  793. 
American  Tube  &  I.  Co.  v.  Kentuc- 
ky Southern  Oil  &  G.  Co., 

127. 
Ames  V.  Bigelow,   1006. 


Ames  V.  Foster,  233. 

V.  Lockwood,  542,  570,  624. 

V.  Storer,  683. 

Amory  v.   Fairbanks,    17,  217, 

308, 

7Z6,    1180. 

V.  Lawrence,    1247. 

Amoskeag   Sav.   Bank  v.   Robbins, 

545,   661. 

Amphlett  v.  Hibbard,  156. 

Anderson  v.  Anderson,  14. 

V.  Austin,    165,    574,    922, 

923, 

924,  940. 

V.  Baumgartner,  93. 

V.  Baxter,  72>,  78. 

V.  Dicks,  648. 

V.  Foulke,  666. 

V.  Hubble,  454,  458. 

V.  Lanterman,    1247. 

V.  Lincoln,   422. 

V.  Matthew,  809. 

V.  Matthews,  817. 

V.  Olinroden,  1067. 

V.  Pilgram.  11,  273. 

V.  Settle.   7Z. 

V.  Stather,  168,  816.  1233. 

V.  Strauss,  717. 

V.  Watt,  120,  160. 

V.  White,  323,  553,  628,  631, 

639. 

Anding  v.  Davis,   1247,   1249, 

1251. 

Andreas  v.  Hubbard,  601,  1172. 

Andrews  v.  Fiske,  93. 

V.  Gillespie,  91,  94,  186,  187, 

198, 

199,  412,  431. 

V.  Glenville    Woolen    Co., 

946, 

947. 

V.  Hubbard,  1066. 

V.  Jones,  50,  54. 

V.  McDaniel,  93,  110,  337. 

V.  Morse,  44,  280. 

V.  O'Mahoney,    610,    611, 

620, 

664. 

V.  Poe,   409. 

V.  Scotton,   17,  310,  533,  736. 

V.  Steele,  138,  234. 

V.  S wanton,  110. 

V.  Torrey.  416,  417. 

V.  Welch,  553. 

V.  Wolcott,  241. 

1736  TABLE    OF 

References  are 
Androscoggin  Sav.  Bank  v.  McKen- 

ny.  309. 
Andrus  v.  Burke,  12. 
Angel  V.  Clark,  647. 

V.  Smith,   759,   787,  824,  825. 
Anglo-California  Bank  v.  Cerf,  576, 

618,  628. 
Anglo-Nevada  Assur.  Corp.  v.  Na- 

deau,  280. 
Anonymous,  14,  2,6,  83,  150,  211,  796, 
799,  825,  917,  966,  1141, 1206, 
1247,  1249.  1256. 
Anrud     v.     Scandinavian-American 

Bank,    161. 
Anshutz's  Appeal,  121. 
Anson  v.  Anson,  179,  184.  1105,  1150, 

1220,  1244. 
Ansonia  Nat.  Bank's  Appeal,  17. 
Ansonio    Brass    &    Copper    Co.    v. 

Conner,  1141. 
Anthony  v.  Anthony,  1192. 
V.  Nye,  341. 
V.  Peay,   122. 
V.  Pierce,  1133. 
V.  Wood,  202. 
Applegate  v.   Mason,  392. 
Arberdeen  v.  Chitty,  797. 
Archambau  v.  Green,  1029. 
Archer  v.  Jones,  101,  203. 
Archdeacon  v.   Bowes.  814. 
Archibald  v.  Banks,  476. 
Argald  v.  Pitts,  225. 
Argall  v.  Pitts,  758,  790,  806. 
Arkenburgh  v.  Lakeside  Residence 

Ass'c,  58. 
Armistead  v.  Kirby,  324. 
Armitage  v.  Davenport,  587,  603. 

v.  Toll,  587. 
Armstrong  v.  Douglas  Park  Bldg. 
Ass'c.  340. 
v.  Hufty,  146,  147. 
v.  Humphreys,  721. 
V.  Humphries.   725. 
V.  Ross,  154,  355. 
V.  Short,  432. 
Armstrong  Cork  Co.  v.  Merchants' 

Refrigerating  Co.,  566. 
Arnaud  v.  Grigg,  247,  248. 


CASES. 
to  Sections. 
Arnold  v.  Crowder,  490,  716. 

v.  Foot,   1185,    1197. 

V.  Green,  1128. 

v.  McBride,  51. 

v.  Patrick,   331.   858,   874. 

v.  Reese,  21. 
Arnot  V.  McClure,  954,  958,  960. 

v.  Post,  179,  182,  184. 

V.  Union  Salt  Co.,  49. 
Arrington  v.  Jenkins,  409. 

V.  Liscom,  1028,  1247. 
Arrowsmith    v.    Arrowsmith,    861, 

890. 
Arterburn  v.  Beard,  683,  712. 
Artrip  v.  Rasnake  &  Son,  469. 
Asendorf  v.   Meyer,  64,  527. 
Ashe  v.  Livingston,  872. 
Ashhurst  v.  Montour  Iron  Co.,  132, 
Ashley  v.  Denton,  73. 
Ashmore  v.  McDonnell,  138. 
Ashton  V.  Milne,  83. 
Asinari  v.  Volkening,  564. 
Aspinwall  v.  Chicago  &  Northwest- 
ern R.  Co.,  294,  1180. 
Astor  v.  Hoyt,  294,  703. 

V.  Miller,  703,  840. 

V.  Palache,   275. 

V.  Romayne,  564,  606. 

V.  Turner.    177,    718,    758,    761, 
792,  793,  801,  806,  817,  819, 
823. 
Atchinson  v.  Surguine,  120,  122. 
Atchison  Sav.  Bank  v.  Wyman,  459. 
Atkins  V.  Atkins,  263. 

V.  Tutwiler,  556,  559,  1117. 

V.  Sawyer,  1117. 
Atkinson  v.  Dance,  73,  79. 

V.  Mackey,  392. 

V.  Manks,  985. 

V.  Patterson,  75. 

V.  Stewart,  155. 

V.  Walton,  43,  61,  62,  64. 

V.  Washington  &  Jefferson  Col- 
lege, 917,  923,  944. 
Atlantic  Dry  Dock  Co.  v.  Leavitt, 

242,  745. 
Atlantic  Savings  Bank  v.  Hetterick, 
888,  901. 


TABLE    OF 
References  are 
Atlantic  Savings  Bank  v.  Hiler,  833, 

888,  889,  902. 
Atlas  Bank  v.  Nahant  Bank,  874. 
Attorney-General   v.    Bank   of    Co- 
lumbia, 764. 

V.  Coventry,  785,  824,  825. 

V.  Day,  781,  819. 

V.  Guardian    Mutual    Life    Ins. 
Co.,  119. 

V.  Mayor  Galway,  821. 

V.  Newark,  668. 

V.  Winstanley,  310. 
Attrill  V.  Rockaway  Beach  Imp.  Co., 

829. 
Atwater     v.     Manchester     Savings 
Bank,  1084,  1087. 

V.  Underhill,  94,  417. 

V.  Walker,  410. 

V.  West,  180. 
Atwood  V.  Carmer,   1137. 

V.  Charhon,  1127. 

V.  Fisk,   401. 

V.  Whittemore,  1007. 
August  V.  Seeskind,  1114. 
Augustine  v.  Doud,  188,  1010. 
Aukam  v.  Zantzinger,  554,  663. 
Ault  V.  Blackman,  394. 
Aultman  v.  Jenkins,  516. 
Aultman  &  Taylor   Co.   v.   Meade, 

447. 
Aurora  Agricultural  &  H.   Society 

V.  Paddock,  176. 
Aust  v.  Rosenbaum,   1177. 
Austen  v.  Richardson,  453. 
Austin  V.  Austin,  1081. 

V.  Ballard,  556. 

V.  Bowman,  683,  690,  700. 

V.  Bradley,  1044. 

V.  Burbank,  36.  49,  115,  360. 

V.  Chapman,  770. 

V.  Chittenden,  411,  461. 

V.  Dorwin,  70,  466,  467. 

V.  Grant,  403. 

V.  Hatch,  546,  628,  640,  641. 

V.  Sawyer,  71. 

V.  Trustees   of   Charleston   Fe- 
male Seminary,  269. 
Averall  v.  Wade,  584,  601. 


CASES.  1737 

to  Sections. 

Averett  v.  Ward,  161,  165. 
Averill  v.  Loucks,  840,  843,  854,  856, 
858,  864,  877,  1174. 

V.  Taylor,    112,    126,    409,    916, 
1124,  1128. 

V.  Wilson,    1050. 
Avery  v.  Brown,  500. 

v.  Layton,  436. 

V.  Ryerson,  180,  194,  1105. 

V.  Stewart,   1141. 

V.  Vansickle,  217,  274. 

v.  Willis,  21. 
Avon-by-the-Sea  Land.  Imp.  Co.  v. 

Finn,  607,  651. 
Ayer  v.  Hawkes,  425. 

V.  Hawkins,  473. 
Ayers  v.   Adair  County,   196,   1056, 
1244. 

V.  Adams,    110,   403. 

V.  Baumgarten,  533. 

V.  Casey,    533. 

V.  Dixson,    745. 

V.  Hamilton,  70. 

V.  Hewitt,  425. 

V.  McRae,  649. 

v.  Richards.  80. 
Aylet  V.  Hill,  17,  216,  736. 
Aymer  v.  Gault,  985. 
Aynsly  v.  Reed,  1127. 
Ayrault  v.  jNIurphy,  2)76. 
Ayre  v.  Stewart,  72>. 
Ayres  v.  Waite,  7Z,  76,  79,  1247. 


B. 


Babbitt  v.  Bowen,  122,  345. 

v.  McDermott,  843. 
Babcock  v.  American  Sav.  &  Loan 
Ass'c,  892. 
v.  Canfield,  640. 
V.  Farwell.  446. 
V.  Jordan,  248. 
V.  Perry,  567. 
V.  Utter,  714. 
v.  Wyman,  1249. 
Bache  v.  Doscher.  209.  225.  242.  258, 
682.  683,  734,  738.  754,  756, 
843.  862. 


1738 


TABLE    OF    CASES. 
References  are  to  Sections. 


Bache  v.  Purcell  180,  991. 

Backus  V.  Burke,  966,  973. 

Backus,  People  ex  rel.  v.  Spalding, 

779. 
Bacon  v.  Bowdoin,  1101,  1128. 

V.  Brown,  473. 

V.  Cottrell,  514,  1205. 

V.  Dyer,  344. 

V.  Mclntire,  74,  75,  79. 

V.  Northwestern   Mut.   L.   Ins. 
Co.,  326,  544. 

V.  Raybould,  391. 

V.  Van  Schoonhoven,  864. 
Badeau  v.  Rogers,  985. 
Badger  v.  Badger,  7Z,  1245. 

V.  Johnston,  983. 

V.  Phinney,  395,  396. 

V.  Shaw,   985. 

V.  Taft,  985. 

V.  Williams,  406. 
Badgley  v.  Decker,  267. 
Baecht   v.    Hevesy,   665. 
Bagley  v.  Weaver,  601. 
Baier  v.  Kelley,  762. 
Baile  v.  St.  Joseph's  Fire  &  Marine 

Ins.  Co.,  477. 
Bailey  v.  Adams,  70,  466,  467. 

V.  Bailey,  1629,  1638. 

V.  Belmont,  810. 

V.  Block,  753. 

V.  Butler,  1003. 

V.  Carlton,  1226. 

V.  Carter,    1247,    1249. 

V.  Fanning  Orphan  School,  683, 
692. 

V.  Gould,  114. 

V.  Jackson,   73,  75,   76,  79. 

V.  Myrick,    138,    146. 

V.  Rockafellow,  1152. 

V.  Ryder,  971. 

V.  Timberlake,  1040.  1105. 
Baily  v.  Smith,  417,  421. 
Bainbrigge  v.  Baddeley,  769. 
Baird  v.  Baird,  1248. 

V.  Jackson,  716. 

V.  McConkey,  220,  738,  741,  756. 
Baker  v.  Aalberg,  1003. 

V.  Backus,  760,  772,. 


Baker  v.  Bailey,  1224,  1248. 

V.  Burdeshaw,  1220. 

V.  Cent.    Nat.    Bank    of    Ells- 
worth, 469. 

V.  Clark,  516. 

V.  Cunningham,  917,  944. 

V.  Hawkins,   148. 

V.  Higgins,  71. 

V.  Jacobson,  1003. 

V.  Kennett,  395. 

V.  Lehman,  50. 

V.  Marsh,   571. 

V.  Morton,  872. 

V.  Pierson,  180. 

V.  Potts,    242. 

V.  Powers,  1191. 

V.  Robbins,  463. 

V.  Scott,    156. 

V.  Shephard,  95,  96,  307. 

V.  Stackpoole,  473. 

V.  Terrell,   112. 

V.  Varney,  762. 
Balch  V.  Onion,  80. 
Baldwin  v.  Allison,  120. 
■  V.  Brown,  458. 

V.  Bucklin,  427. 

V.  Burt,  663,  1229. 

V.  Howell,  458,  683. 

V.  Norton,  80,  410. 

V.  Thompson,  193. 
Balfe  V.  Lord,  38. 
Balfour  v.  Davis.  1007. 
Ball  V.  Bullard,  267. 

V.  Marske,  792,  793. 
Ballard  v.  Anderson,  183. 

V.  Carter,    147. 

V.  Jones,   1095. 

V.  Kennedy,  161. 
Ballentyne   v.    Smith,   640. 
Ballew  V.  Clark,  397. 
Ballin  V.  Dillaye,  232,  233,  257. 
Ballinger  v.  Bourland,  1055. 

V.  Edwards,  409. 

V.  Waller,  726. 
Ballon  V.  Sherwood,  540. 
Ballow  V.  Taylor,  443. 
Baltimore  &  O.  R.  Co.  v.  Trimble, 
79. 


TABLE    OF 
References  are 
Bancroft  v.  Cambridge,  294, 

V.  Swain,   1248. 
Bangs  V.  Hall,  81. 
Banister  v.  Way,  667,  675. 
Bank  v.  Campbell,  109. 
V.  Chester,  753. 
V.  Connelly,  152. 
V.  Doherty,  56. 
V.  Dundas,    1209. 
V.  Eldredge.  1105. 
V.  Magee,  259. 
V.  Thayer,  1065. 
V.  Tureaud,  848. 
Bank  of  Albion  v.  Burns,  883,  1174. 
Bank  of  Auburn  v.  Roberts,  294. 
Bank  of  British  Columbia  v.  Page, 

539. 
Bank  of  California  v.  Webb,  473. 
Bank  of  Commerce  v.  Lanahan,  132. 
V.  Owens,  879,  1211. 
V.  Scofield,  62. 
Bank  of  England  v.  Tarleton,  103. 
Bank  of  Hamburg  v.  Howard,  601. 
Bank  of  Hampton  v.  Fennell,  504. 
Bank  of  Indiana  v.  Anderson,  115. 
Bank  of  Mississippi  v.  Duncan,  769. 
Bank    of    Mobile    v.    Planters    and 

Merchants'  Bank,  102. 
Bank  of  Monroe  v.  Keeler,  775. 
Bank  of  New  Brunswick  v.  Hassert, 

640. 
Bank  of  Niagara  v.  McCracken,  344. 

V.  Rosevelt,  493. 
Bank  of  Ogdensburg  v.  Arnold,  50, 
576,  758,  760,  763,  788,  793, 
801,  802,  804,  806. 
Bank  of  Orleans  v.  Flagg,  209,  213, 

214,  353,  484,  489. 
Bank  of   Pine   Bulff   v.   Levi,  609, 

640. 
Bank  of  Plattsburg  v.  Piatt,  993. 
Bank  of  Rochester  v.  Emerson,  220, 
225,  227,  734.  735,  738,  756. 
Bank  of  San  Louis  Obispo  v.  John- 
son, 56,  328. 
Bank  of  Sonoma  County  v.  Charles, 
567. 


CASES.  1739 

to  Sections. 

Bank  of  United  States  v.  Biddle,  79. 

V.  Carroll,    180.    190. 

V.  Covert,    102,    103. 

V.  Dallam,   7Z. 

V.  Huth,  115. 

V.  Smith,  49,  344. 

V.  Voorhees,  721. 
Bank  of  Utica  v.  Finch,  714,  1174, 
1192. 

V.  Mersereau,  452. 
Bank  of  Wisconsin  v.  Abbott,  109. 
Bank  of  Woodland  v.  Stephens,  762. 

V.  Treadlend,  1009. 
Banks  v.  McClellan,  411,  1203. 

V.  Walker,  15,  422,  484,  495,  498, 
500. 

V.  Walter,  498. 
Banning  v.  Bradford,  213,  484. 
Banta  v.  Maxwell,  646. 

V.  Wood,   221. 
Bar  V.  Valentine,   1135. 
Barber  v.  Babel.  82. 

V.  Barber.  28. 

V.  Cary,  864. 

V.  Chandler.    1141. 

V.  Crowell,    345. 

V.  Graves,  269. 

V.  Wadsworth,   706. 
Barbieri  v.  Ramelli,  3,  11. 
Barbour  v.  Tompkins,  558. 
Barclay   v.    Leas,    1020. 

V.  Quicksilver  Mining  Co.,  389, 
774. 
Bard  v.   Poole,   106,   147,   166,   172, 
194,  201. 

V.  Steele,  520,  576. 
Baring  v.  Moore,  539,  608,  771. 
Barker  v.  Burton,  485,  486,  994. 

V.  International   Bank   of    Chi- 
cago,   459. 

V.  Pierson,  1173. 

V.  White,  985. 
Barkhamsted  v.  Case,  422. 
Barkley  v.  Reay,  127,  207. 
Barksdale  v.  Garrett,  1252. 
Barley  v.  Myrick,  1208. 

V.  Roosa,  543. 


1740  TABLE    OF 

References  are 
Barlow  v.  Cooper,   1038. 

V.  McClintock,  640. 
Barnaby  v.   Parker,  432. 
Barnard   v.   Barned,   79. 

V.  Bruce,  989,  990,  1001. 

V.  Cushman,  1177. 

V.  Duncan,  432. 

V.  Jennison,  1189. 

V.  Onderdonk,  485. 

V.  Wilson,  679,  683,  712. 
Barnes  v.  Brown,  1048. 

V.  Decker,   181. 

V.  Eddy,   1141. 

V.  Lee,   977. 

V.  Long  Island  Real  Estate  Ex. 
&  Invest.  Co.,  416. 

V.  Meyer,   983. 

V.  Racster,  584. 

V.  Stoughton,  643. 
Barnett   v.   Nelson,   792. 
Barney  v.  McClancy,  360. 

V.  Myers,  589,   1209. 
Barnitz  v.  Beverly,  1071. 
Barnwell  v.  Marion,  516. 
Barr  v.  VanAlstine,   1239.  1251. 
Barraque  v.  Manuel,  91,  198. 
Barrett  v.  Allen,  1141. 

V.  Blackmar,     101,     147,     1192, 
1214. 

V.  Cochran,    161. 

V.  Prentiss,  474. 
Barrick  v.  Horner,  280,  312.  313. 
Barron   v.    Martin,   83,    1247,    1249, 

1252,   1256. 
Barry  v.  Anderson,  313. 

V.  Equitable    Life    Assurance 
Society,  439. 

V.  Guild,  412. 

V.  Merchants     Exchange     Co., 

1174. 
v.  Stover,    416. 
Barthett  v.  Elias,  447. 
Barthol  v.  Blakin,  ZZ7. 
Bartholf   v.   Bensley,   Z7,   416,   417, 

418,  443. 
Bartholl  v.  Syverson,  514,  516,  1020. 
Bartholomew  v.  Finnemore,  395. 
Bartle  v.  Wilkin,  983. 


CASES. 
to  Sections.  ' 

Bartleson  v.  Munson,  1067,  1123. 

v.  Thompson,  1087. 
Bartlett  v.  Amberg,  713,  719. 

V.  Boyd,  134. 

V.  Cottle,  11. 

V.  Sanborn,  967. 
Bartlett    Estate    Co.    v.    Fairhaven 
Land  Co.,  63,  480,  556,  570. 
Bartmess  v.  Holliday.  880. 
Barton  v.  Anderson,  502. 

V.  Beer,  232,  267. 

v.  Kingsbury,  149,  914. 

V.  May,  1220,  1243. 
Bartow  v.  Cleveland,  275,  985,  996, 

997. 
Bascom  v.  Smith,  1050. 
Basford  v.  Pearson,  233. 
Baskins  v.  Calhoun,  461. 
Bass  Foundry,  etc.,  Works  v.  Gal- 

lentine,  714. 
Basse  v.  Callegger,  54,  62,  354. 
Bassett  v.  Bradley,  453,  743. 

v.  Mason,  17. 
Batchelor  v.  Middleton,  164,  1092. 
Bates  V.  Brothers,  768,  812,  817. 

v.  Conrow,  75,  1053. 

V.  Delavan,  422. 

V.  Reynolds,  36. 

V.  Rosekans,    447. 

V.  Ruddick,  146,  589,  1001,  1056, 
1244. 

V.  Wiggin,  361. 
Bathgate  v.   Haskin.  228,  440,  441, 

444,  982,  988,  996. 
Batre  v.  Auze's  Heirs,   161. 
Batterman  v.  Albright,  136,  717. 
Battershall  v.  Davis,  708,  725. 
Battle  V.  Davis,  769,  787. 
Batty  V.  Snook,  1038,  1047. 
Baugher  v.  Merriman,  1044,  1047. 
Baughman  v.  Gould,  424,  428,  429, 

448. 
Bausman  v.  Kelley,  916. 
Baxley  v.  Bennett,  1141. 
Baxter  v.  Bradbury,  488. 

V.  Child,  1036,  1038. 

v.  Dear,    1029. 

V.  Mclntire,  409. 


TABLE    OF 

References  are 

Baxter  v.  Smack,  274. 

V.  West,  999. 

V.  Willey.  1036. 
Bay  V.  Williams,  743.  747. 
Bayard  v.  Fellows,  805.  813. 

V.  Malcolm,  71. 
Bayer  v.  Phillips,  133. 
Bayington  v.  Buckwalter,  1121. 
Bayley  v.  Bailey,  1029. 
Baylies  v.  Baylies,  780. 
Bayly  v.  Muehe,  155.  161,  165. 
Beach  v.  Cooke,  1215,  1220. 

V.  Fulton,  387. 

V.  King.  343. 

V.  Shanley,  62.  70,  466. 

V.  Shaw,  623.   1082,  1121,  1123. 

V.  Stearnes,  434. 
Beacon  v.  Gray,   1251. 
Beacon   Hill   Land   Co.  v.   Bowen, 

929,  944. 
Beal  V.  Cobb.  1234. 
Beall  V.  Barclay,  1208. 
Beals  V.  Lewis.  459. 

V.  Neddo,  408.  416. 
Beamis  v.  Leonard,  1141. 
Bean  v.  Boothby,   134. 

V.  Brackett.    1243. 

V.  Hoffendorfer,  640. 

V.  Pearce,  1177. 

V.  Whitcomb,  964.  966. 
Beard  v.  Fitzgerald.  584.  1180,  1209, 
1212. 

V.  Smith,  58. 
Beardsley  v.  Higman,  540. 

V.  Hotchkiss,  395. 
Bearss  v.  Ford,  1036,  1038. 
Beasley  v.  Newell,  67. 
Beasom  v.  Porterfield.  1034. 
Beau  V.  Kiah.  267. 
Beaufort    County    Lumber    Co.    v. 

Dail,  683,  706.  1055. 
Bebber  v.  Moreland.  417,  418. 
Bech  V.   Ruggles,  334. 
Bechstein  v.  Schultz.  548.  607. 
Bechtel  v.  Wier.  568,  576. 
Beck  V.  McKibben,  540. 
Beckenbaugh  v.  Nally,  667,  677. 


CASES.  1741 

to  Sections. 

Becker  v.  Bluemel,  476. 

V.  Boon,  262. 

V.  Howard,  152,  196,  367,  374. 

V.  McCrea,  1247,  1252. 

V.  VanValkenburgh.   1251. 
Beckett  v.  Cordley.  1061,  1246. 
Beckford  v.  Wade,  1251. 
Beckley  v.    Munson,   71. 
Beckwith   v.  Windsor  Manuf.   Co., 

360. 
Bedell  v.  McClellan,  945. 
Beebe  v.  Morris.  107. 

V.  Swartwout.  422. 
Beecher   v.    Marq.   &    Pac.    Rolling 

Mill  Co..  762.  779.  808. 
Beekman  v.  Gibbs,  572,  831,  854. 

V.  Frost.    1220. 

V.  Hudson    River   West   Shore 
R.  Co.,  147,  328. 
Beekman's  Fire  Ins.  Co.  v.  First  M. 
E.    Church   of    New   York, 
857. 
Beers  v.  Chelsea  Bank,  830. 

V.  Hawley,  106. 
Beevar  v.  Luck,   1064. 
Beisel  v.  Artman,  54. 
Beitel  v.  Dobbin.  938. 
Belch  V.  Harvey,  83,  1249,  1251. 
Belden   v.   Davies,    1256. 

V.  Meeker.  114. 

v.  Slade,    180,    184,    1087,    1097. 
Belding  v.  Manley,  93.  103. 
Belk  v.  Fossler.  88. 
Belknap  v.   Gleason.  80. 

v.  Sealey,  421,  434. 
Belknap  Sav.  Bank  v.  Larmer  Land 

&  Canal  Co..  771. 
Bell  V.  Birdsall.  727. 

V.  Bomaine.  328. 

V.  Corbin,  846. 

V.  Gilmore.  755. 

V.  Hall.   161. 

V.  Hob  a  ugh.  276. 

V.  Hopworth,  568. 

V.  Mayor,   etc.,   of   New  York, 
156,  879,  880.  1126.  1172. 

V.  Morrison,   81. 

V.  New  York,  1189. 


1742 


TABLE   OF    CASES. 
References  are  to  Sections. 


Bell  V.  Omaha  Savings  Bnk,  537. 

V.  Pate,  482.  485. 

V.  Radcliff,  404,  405. 

V.  Roland,   81. 

V.  Rowland,  81. 

V.  Shrock,  101,  203. 

V.  Simpson,  345. 

V.  The   Mayor,   155. 

V.  Thompson,  618. 
Ballamy  v.  Sabine,  151,  364. 
Bellas  V.  Lavan,  72>. 
Belloc  V.  Davis,  43,  54. 
Belloe  V.  Rogers,  681. 
Belmont   v.    Coman,   239,   241,   242, 
745,  748,  750. 

v.  Cornen,   263,   273,   753. 

V.  O'Brien,    74,    79. 

V.  Ponvert,  982. 
Belmont    County    Branch    Bank   v. 

Price,  51. 
Belote  v.  Winne,  81. 
Belt  V.  Bowie,  334. 
Belter  v.  Lyon,  657. 
Belton  V.  Avery,   1029,   1095. 
Bemus  v.  Thrall,  1001. 
Bender  v.  Fromberger.  498. 
Benedict  v.   Oilman,   179,   180,   182, 
610,  951,  952,  966,  969,  972, 
983,  1011,  1087,  1185,  1189, 
1243. 

V.  Hunt,  245,  427. 

V.  Maynard,  783. 

V.  Warriner,   260,   994,    1020. 
Benham  v.  Bishop,  395. 

v.  Rowe,  310,  1107,  1206. 
Benhard  v.  Darrow,  723,  726. 
Benjamin  v.  Cavaroc,  18,  28. 
Benneson  v.  Bill,  762,  775,  778,  781. 
Bennet  v.  Holt,  1029,  1036. 
Bennett  v.  Austin,  609,   1055. 

v.  Bates,  241,  244,  442,  445,  461, 
749. 

V.  Butterworth,  28. 

V.  Calhoun  Association,  143. 

V.  Chase,   365. 

V.  Keehn,    385,   460. 

V.  Matson,  713,  725. 

V.  Mattingly,    138. 


Bennett  v.  Solomon,  115,  345. 

V.  Spillars,  234. 

V.  Stevenson,  64. 

V.  Taylor,  416. 
Bennick  v.  Whipple,  1029. 
Benningfield  v.  Reed,  721. 
Benninghoff  v.  Stephenson,  623. 
Bennington  Iron  Co.  v.  Rutherford, 

410. 
Bensieck  v.  Cook,  609,  705. 
Bensley  v.  Homier,  385. 
Benson  v.  Bunting,  1147,  1189. 

v.  Heathorn,  369. 

V.  Markoe,  914. 

V.  Sayre,  371. 

V.  Stewart,  75,  77,  78,  79,  80. 
Bentley  v.  Beacham,  620. 

v.  Robson,  436. 

v.  Smith,  432. 
Benton  v.  Barnet,  333,  334. 

v.  Hatch,  1105,  1177. 

V.  Nicoll,  478,  1065. 

V.  Shreeve,  113. 

V.  Wood,  576. 
Bergen  v.  Backhouse,  593. 

V.  Bennett,  913,  936,  1247. 

V.  Carman,  901. 

V.  Snedeker,  619,  643,  654,  833, 
886,  901. 

V.  Urbahn,  476. 
Berger  v.  Duff,  604. 

v.  Heister,  50,  579. 
Berkshire    Life    Ins.    Co.    v.    Hut- 

chings,  747. 
Berlin  Building  &  L.  Association  v. 

Clifford,  988,  989. 
Bernard  v.  Jersey,  1055. 

V.  Shemwell,  138. 
Berne   v.    Hartford   Fire   Ins.    Co. 

1039. 
Berney  v.  Sewell,  762,  811,  812,  813, 

816. 
Bernhard  v.  Hovey,  637. 
Bernhardt  v.  Lymburner,  478,  584, 

595. 
Bernheimer  v.  Adams,  715. 

V.  Willis,  446. 
Bernstein  v.  Hobelman,  539. 


TABLE    OF 
References  are 
Berry  v.  Bacon,  132. 

V.  Johnson,  668. 

V.  Mutual  Ins.  Co.  330,  493. 
Berryhill  v.  Kirchner,  683. 

V.  Potter,  1087. 
Berthold  v.  Fox,  1071. 
Bertles  v.  Nunan,   142,   162. 
Besser  v.  Hawthorn,  180. 
Best  V.  Brown,  244. 

V.  Thiel,  401. 
Betsey  v.  Torrance,  1227. 
Bettk  V.  Tiedgen,  416. 
Betts,  In  re,  70,  71,  466,  467. 

V.  Birdsall,  727. 
Betz  V.  Vesner,  302. 
Beverley  v.  Brooke,  759,  785,  811, 

815. 
Beverly  v.  Schoonmaker,  892,  1019. 
Bevin  v.  Powell,  397. 
Bibb  v.  Crews,  324. 

v.  Hawley,  115,  199. 
Bickford  v.  Johnson,  401. 

v.  Parson,  1145. 
Bicknell  v.  Bicknell,  330. 

v.  Byrnes.    225,    539,    554,    556, 
559,  604,  611,  734,  756. 
Biddel  v.  Brizzolara,  1256. 
Biddle  v.  Pugh,  253,  743. 
Biden  v.  James,  389. 
Bieber  v.  Goldberg,  61,  64. 
Biedler  v.  Malcolm,  412. 
Bierbauer  v.  Worth,  406. 
Bigelow  V.  Booth,  119. 

V.  Bush,  138,  161,  242,  390. 

V.  Cassedy,  210,  1035,  1087. 

V.  Davol,  180. 

V.  Kinney,  395,  396. 

V.  Stilphens,  399. 

V.  Stringfellow,  1085. 

V.  Wilson,  1141. 

V.  Windsor,  1173,  1245. 
Biggerstaff  v.  Loveland,  165. 
Biggs  V.  Andrews,  839. 
Bigler  v.  Waller,  318,  1033. 
Big  Sandy  Lumber  Co.  v.  Kuteman, 

209. 
Bilgerry  v.  Ferguson,  416. 
Billington  v.  Forbes,  624,  640,  646. 


CASES.  1743 

to  Sections. 

Bing  V.  Morse,  347. 

Binsse  v.  Paige,  239. 

Birbeck    Invst.    Sav.    &    L.    Co.    v. 

Gardner,  607,  656. 
Bird  V.  Davis,  440,  444. 

V.  Gardner,  155. 

V.  Keller,  1138,  1249. 

V.  McCreary,  541. 

V.  Olmstead,  54. 
Birdseye  v.  Rogers,  357,  535. 
Birke  v.  Abbott,  743,  744. 
Birmingham  Iron  Foundry  v.  Hat- 
field, 529. 
Birne    v.    Hartford    Fire    Ins.    Co. 

1135. 
Birnie    v.    Main,   80,   84,   227,   602, 

1065. 
Bisbee  v.  Carey,  142. 
Bischof  V.  Coffelt,  400. 
Bishop  V.  Bishop,  490,  714. 

V.  Clay  Insurance  Co.,  423. 

V.  Douglass,  220,  242. 

V.  Van  Winkle,  682. 
Bishop  Bailey  Bldg.  &  L.  Assoc,  v. 

Kennedy,  285,  309. 
Bishop  of  Winchester  v.  Paine,  365, 

367. 
Bissell  V.  Boseman,  1255. 

v.  Bosman,  978. 

V.  Briggs,  35,  751. 

V.  Jaudon,  76. 

V.  Marine  Co.  of  Chicago,  165. 

V.  Payn,  712. 
Bitting  V.  Ten  Eyck,  766. 
Bitzer  v.  Campbell,  573. 
Bixby  V.  Smith,  262. 
Bixly  V.  Mead,  627. 
Bizzell  V.  Nix,  80. 

V.  Roberts,  54. 
Black  V.  Galway,  154,  160,  233. 

V.  Gerichten,  1105. 

V.  Reno.  65,  411. 

V.  Steele,  640. 

V.  Thomson,  228. 

V.  Thurston.  419,  443. 
Blackburn  v.  Salem  R.  Co.  640. 

V.  Warwick.  409. 
Blackburne  v.  Squib,  73. 


1744  TABLE    OF 

References  are 

Blackfoot    State    Bank    v.    Crisler, 

476. 
Blackledge  v.  Nelson,  591. 
Blackman  v.  Nearing,  1141. 
Blackmar  v.  Sharp,  404. 
Blackwell  v.  Barnett,  80. 

V.  British  -  American      Mortg. 
Co.,  568. 
Blackwood  v.  Jones,  458. 
Blair  v.  Chicago,  etc.,  R.  Co.,  1135. 

V.  Marsh,  115,  144,  187. 

V.  Wait,  454. 

V.  Ward,  602. 

V.  White,  309. 
Blake  v.  Alabama  &  C.  R.  Co.,  765. 

V.  Dennett,  918. 

V.  Foster,  1247,  1252. 

V.  Langdon,  442. 

V.  McCash.  633. 

V.  McCosh,  282,  285,  309. 

V.  Sanborn,  98. 
Blakely  v.  Calder,  14,  671,  721. 
Blakeman  v.  Fonda,  81. 
Blakeney  v.  Dufaur,  768. 
Blakey  v.  Abert,  604. 
Blakslee     Manufacturing      Co.     v. 
Blakslee  Sons  Iron  Works, 
703. 
Blanchard  v.  Morey,  401. 

V.  Page,  1145. 
Blanco  v.  Foote,  966,  969,  977. 
Blandin  v.  Wade.  362. 
Blass  V.  Terry,  750.  843,  846. 
Blatchford  v.  Blanchard,  534. 
Blazey  v.  Delius,  571,  579. 
Blethen  v.  Dwinal,  74,  79,  83,  1247. 
Blight  V.  Banks,  591. 
Bliss  V.  Whitney,  490. 
Blitz  V.  Moran,  537. 
Block  V.  Allen,  72,7. 
Blondheim  v.  Moore,  793,  799. 
Blood  V.  Shepard,  967. 
Bloodgood  V.  Bruen,  81. 

V.  Clark,  792.  797. 
Bloom  V.  Burdick,  269,  912. 

V.  McGehee.  468. 

V.  Noggle,  331. 


CASES. 
to  Sections. 
Bloomer  v.  Henderson,  416. 

V.  Sturges,  106,  187,  201. 
Bloomingdale  v.  Barnard,  1105. 
Blossom  V.  Milwaukee  &  C.  R.  Co., 

537,   604,  606,  614,  656. 
V.  Railroad  Co.,  533. 
Blount  V.  Spratt,  397. 
Bludworth  v.  Lake,  146. 
Blum  V.  Mitchell,  1207,  1214,  1243. 
Blumle  V.  Kramer,  738. 
Blumberg  v.  Birch,  736,  739. 
Blydenburgh  v.  Cotheal,  410. 

V.  Northrup,  155,  156,  840,  843. 

858,  879,  880. 
Blyer  v.  Monholland,  242.  743.  750. 
Blystone  v.  Blystone,  420. 
Board  of  Home  Missions  of  Pres- 
byterian  Church   V.   Davis, 

731. 
Board  of  Supervisors  of  Iowa  Co. 

V.    Mineral    Point   R.    Co., 

489. 
Board    of    Supervisors    v.    Mineral 

Point  R.  Co.,  323. 
Boardman  v.  De  Forest,  72. 

V.  Dennaford,   740. 
Boarman  v.  Catlett,  1116. 
Boatman's  Bank  v.  Fritzlen.  209. 
Bobb  V.  Wolfif,  1029. 
Bobbitt  V.  Blackwell,  843,  852. 
Bockes  V.  Hathorn,  473,  983,   1007, 

lOlO 
Bodine  v.  Edwards,  620. 
Bodkin  v.  Merit,  67,  469. 
Body  V.  Jewsen,  115. 
Boehmeke  v.  McKeon,  164. 
Bogart,  In  re,  1020. 
Bogey  V.  Shute,  213. 
Boggs  V.  Fowler,  138.  146,  147.  670, 

1026,  1113. 
V.  Hargrave,  671. 
Bogut  v.  Colburn,  1102. 
Boice  V.   Michigan   Mut.   Life   Ins. 

Co.,  137. 
Boisclair  v.  Jones,  452. 
Boley  V.   Lake   Street   Elevated   R. 
Co.,  127. 


TABLE 

References 

BoIIes  V.  Beach,  242. 

V.  Carii,  92. 

V.  Duff,  109,  722,  762,  788.  789, 
812,  815.  963.  965,  966,  967, 
969,  971,  977,  1215. 

V.  Munnerlyn,  136. 
Boiling  V.  Mulchus.  401. 
Bollinger  v.  Chateau,  147. 
Bolman  v.  Lohman,  30O. 
Bolton  V.  Ballard,  155. 

V.  Brewster,  85. 
Bomar  v.  West.  38. 
Bond  V.  Bond,  922. 

V.  Dolby,  743. 
Bond  Realty  Co.  v.  Pounds.  365. 
Bonesteel  v.  Sullivan.  420. 
Bonestell  v.  Bowie.  469.  1006. 
Bonham  v.  Newcomb.  38.  1042,  1045. 
Bonhoff  V.  Weihorst.  746. 
Bonnell  v.  Ray.  1029. 
Bonner  v.  McPhail,  511. 
Bonner  Springs  Lodge  &  Sanitari- 
um V.   McClelland.  58. 
Bonnett  v.  Brown.  640. 
Bonney  v.  Ridgard.  83.  1249. 
Boody  V.  McKenny.  395.  396. 
Booker  v.  Booker.  75.  79. 

V.  Waller.  1113. 
Booknau  v.  Burnet.  328. 
Bool  V.  Mix.  395. 
Boon  V.  Kent.  291. 

V.  Pierpont.  75,  79. 
Boone  v.  Armstrong.  452. 

V.  Clark.  2>7.  468,  478,  584,  585, 
589. 

V.  ^liller,  314,  318.  555. 
Booraem  v.  Wood,  294. 
Boorum  v.  Tucker,  617.  664,  670. 
Booth  V.  Clark.  759.  760.  786,  787, 
788. 

V.  Connecticut  Mut.  Life  Ins. 
Co..  242.  743. 

V.  McQueen.    1004,    1187. 

V.  Ryan,  464,  500. 

V.  Wolff   Process  Leather   Co., 
58. 
Boquet  v.  Coburn,  1100. 
Borcherdt  v.  Favor.  1006. 

Mort?.  Vol.  ir.— 110. 


OF   CASES,  1745 

are  to  Sections. 

Bord  V.  Tollemache,  817. 
Borden  v.  Gilbert,  220.  253,  741. 

V.  Grady.  589. 
Borgess  Invst.  Co.  v.  Vette,  416. 
Borland  v.  Alleond.   1017. 
Borromscale  v.  Tuttle,  1215. 
Borst  V.  Boyd,  1256. 

v.  Corey,  80. 
Boruff  V.  Hinkley,  808. 
Boschker  v.  Van  Beek.  704. 
Boston   Bank  v.   Chamberlain.   174. 
Boston  &  ]\Iaine  Railroad  Company 

V.  Whitcher,  1145. 
Boston  &  Providence  Railroad  Cor- 
poration V.  The  New  York 
&  New   England   Railroad 
Company.  458.   1232. 
Bostwick  V.  Abbott,  1245. 
V.  Isbell,  766,  771. 
V.  McEvoy.  527. 
V.  i\IcLarren.  406. 
V.  Menck,  346. 
V.  VanVleck,  535. 
Boswell  V.  Otis,  751. 
Bosworth  V.  Sandlin.  436. 
V.  Vandewalker,  269. 
Botsford    V.    Botsford,    478.    1002, 

1004. 
Bottineau  v.  ^tna  Ins.  Co..  916. 
Boucofski  V.  Jacobson,  179,  744. 
Bouligny  v.  Frotier,  417. 
Bound  V.    South    Carolina    R.    Co., 

533. 
Bourgeois  v.  Gapen,   1204. 

V.  Jacobs,  136. 
Bourke  v.  Sommers.  545,  552. 
Bourland  v.  Kipp.  94. 
Bourne  v.  Bourne,  58.  840. 
Bouton  V.  Cameron,  417,  419. 
Boutwell  V.  Steiner,  138. 
Bovev  De  Laittre  Lumber  Company 

V.  Tucker.  1080.  1105. 
Bowdoin  v.  Hammond.  664. 
Bowe  V.  Bowe,  435,  469. 

V.  Scherz,  55. 
Bowen  v.  Beck,  244. 
V.  Bowen,  442. 


1746 


TABLE    OF 
References  arc 


Bowen  v.  Brogan,  701. 

V.  Conner,  1145. 

V.  Kaughran,  901. 

V.  Kurtz,  242,  244. 

V.  Thrall,  422. 

V.  Wickersham,  359, 

V.  Wood,  341,  362. 
Bowman  v.  Ash,  545. 
Bower  v.  Bower,  476. 

V.  Stein,  55,  62,  649. 
Bowers  v.  Hechtman,  932. 
Bowersbank  v.  Collassean,  776,  778, 

786,  788. 
Bowery   Savings    Bank  v.   Keenan, 
899. 

V.  Richards,  790. 
Bowker  v.  Henry,  773,  999. 
Bowles  V.  Braur,  628. 
Bowman  v.  Ash,  545,  640,  641. 

V.  Marshall,  382,  387,  532. 
Bowne  v.  Leveridge,  905. 

V.  Lynde,  242,  599. 
Boyce,  ex  parte,  683,  695. 

V.  Brown,  507. 
Boyd  V.  Anderson,  431. 

V.  Beck,  74,  75. 

V.  Blankman,  73. 

V.  Dodge,    353,    989,    990,    993, 
1002. 

V.  Ellis,  610. 

V.  Harris,  73. 

V.  Murray,  785. 

V.  Parker,  340. 

V.  Shorrock,  490. 

V.  Sumbner.   1005. 

V.  Weil,  377,  378. 
Boyden  v.  Boyden,  395. 
Boyer  v.  Boyer,  966,  967,  968. 

V.  East,  609. 
Boykin  v.  Jones,  374. 
Boynton  v.  Jackway,  723,  726. 
Bozarth  v.  Landers,  484,  488. 

V.  Larget,  627. 
Bozzartle  v.  Largent,  567. 
Bozza  V.  Rowe,  533. 
Brackett  v.  Baum,  156,  921,  924,  948. 
Bradburn  v.  Roberts,  843. 
Braden  v.  Grady,  589. 


CASES. 
to  Sections. 
Bradfield  v.  Hale,  11. 

V.  Sewall,  584. 
Bradford  v.  Harper,  50,  579. 

V.  King,  127,  312. 

V.  Knowles,   14. 

V.  Russell,  362,  455. 
Bradley  v.  Bentley,  465. 

V.  Chester  Valley  R.   Co.,  964. 

V.  Fuller,  46. 

V.  George,  1180,  1209. 

V.  Glenmary,  58,  466,  467. 

V.  Leahy,  667. 

V.  Lightcap,  563. 

V.  Merrill,  1189. 

V.  Nathan,  1212. 

V.  Parkhurst,  212,  213. 

V.  Snyder,  147,  1011,  1113,  1115, 
1123,   1189,  1191. 

V.  Trammel,  418. 
Brady  v.  His  Creditors,  1020. 

V.  Kingsland,  980. 

V.  Waldron,  302. 
Bragdon  v.  Hatch,  918. 
Brainard  v.   Cooper,   179,   180,    182, 

184,  721,  964,  1087. 
Bram  v.  Bram,  138,  212. 
Braman  v.  Dowse,  242,  1145. 
Bramhall  v.  Flood,  183. 
Branch  v.  Wilkens,  482. 
Branch   Bank   of    Mobile   v.   Hunt, 

614,  660,  663,  1033. 
Brand  v.  Kleinecke,  470,  996. 

V.  McMahon,  716. 

V.  Smith,  54,  63. 
Brandies  v.  Stewart,  982. 
Branfort    County    Lumber    Co.    v. 

Dail,  683. 
Brant  v.  Vix,  417. 
Brasher  v.  Cortlandt,  664,  666. 

V.  Van  Courtlandt,  777. 
Brasher's  Ex'rs.   v.   Cortlandt.  652. 
Brasted  v.  Sutton,  794,  798,  799. 
Braun  v.  Vollmer,  1059. 
Bray  v.  First  Ave.  Coal  Mining  Co., 

469. 
Breach  v.  O'Neal,  695. 
Breadmore  v.  Phillips,  784. 


TABLE    OF 
References  are 
Breckinridge  v.  Brooks,  1206. 

V.  Churchill,  73. 
Bredin's  Appeal,  406. 
Breed  v.  Baird,  127. 

V.  Eastern  R.  Co.,  294. 

V.    Higgenotham    Bros.   &    Co., 
228. 

V.  Pratt,  397. 
Breeding  v.  Stamper.  451,  458. 
Breen  v.  Lennon,  381. 
Breese  v.  Bangs.  14,  492,  721. 

V.  Busby,  637. 

V.  Bushby,  606. 
Brehm    v.     Mayor,    etc.,    of    New 

York,  684. 
Breit  v.  Yeaton,  170. 
Bremen    Mining   &   Milling   Co.   v. 

Bremen,  1031. 
Bremer  v.   Calumet  &  C.   Canal  & 
D.    Co.,    1135,    1142.    1235, 
1236. 
Bremer  Co.  Bank  v.  Eastman,  115. 
Brenen  v.  North,  263,  354. 
Brennan  v.  Storm.  676. 
Brennen  v.  North,  371. 
Brenner  v.  Bigelow,  161,  165. 
Brerton  v.  Mills.  737. 
Bresnahan  v.  Bresnahan.  966. 
Bressler  v.  INIartin,  54,  79. 
Brett  V.  Brown,  271. 

V.  Davenport,  918. 
Brevoort  v.  Brevoort,  170,  721. 

V.  Randolph.  517,  753.  1019. 
Brewer    v.    Hyndman,    1077,    1082, 
1085. 

V.  Landis,  620. 

V.  Longnecker,  735. 

V.  Maurer,   242,   247,   250.   252, 
257.  743,  747. 

V.  Nash,  704. 

V.  Penn.  Mut.  Life  Ins.  Co.,  43. 

V.  Staples,  112. 
Brewster  v.  Power.  954. 

V.  Silence,  71. 

V.  Wakefield,  53. 
Brick  V.  Brick,  1037. 

V.  Harnbeck.  792. 

V.  Scott,  232. 


CASES.  1747 

to  Sections. 

Brickell,  John  Co.  v.  Sutro,  1010. 

V.  Batchelder,  58,  310,  328. 
Bridenbecker  v.  Lowell,  103. 
Bridenbecker,    People    ex    rel.,    v. 

Prescott,  928,  935,  962. 
Bridgeman  v.  Johnson,  327,  477. 
Bridgen  v.  Carhartt,  867. 
Bridgeport    Savings    Bank    v.    El- 
dredge,  978,  1105,  1147. 
Bridger    v.    Exchange    Bank,    367, 

374,  375,  380. 
Bridges  v.  Blake,  401,  403. 

V.  Linder,  1216. 
Bridgewater  Roller  Alills  Co.  v.  Re- 
ceivers of,  Baltimore  Build- 
ing &  Loan  Ass'c,  602. 
Bridgewater       Roller       Mills       v. 

Strough,  602. 
Brier  v.  Brinkman,  894. 
Briggs  V.  Bergen,  654. 

v.  Briggs,  450. 

V.  Craford,  443. 

V.  Crawford,  417,  951. 

V.  Davis,  1087. 

V.  Hannowald.  115. 

V.  Kaufman,  584. 

V.  Langford,  401. 

V.  Norris,  294. 

V.  Richmond,  17,  736. 
Brigham    v.    Connecticut    Mut.    L. 

Ins.  Co.,  926. 
Bright  v.  Pennywhit,  723. 
Brighton  v.  Doyle,  1104. 
Brim  v.  Fleming,  7. 
Brinckerhoff   v.   Lansing.   945,   977, 
1237. 

V.  Thallhimer,  56.  570,  574. 
Brine    v.    Hartford    Fire    Ins.    Co., 

1041,   1139,   1173,   1176. 
Brinkerhoff  v.  Franklin,  385.   1147. 

V.  Marvin,  1174. 
Brinkman  v.  Jones,  1029. 

V.  Ritzinger,  792,  799,  819. 
Brisbane  v.  Stoughton.  310. 
Brisco  V.  Power,  599. 
Bristol  V.  Hershey,  563,  1105,  1145. 

V.  ^lorgan,  229.  253,   742,   743. 


1748 


TABLE    OF 

References  are 


British  &  American  Mortgage  Co. 

Ltd.  V.  Worrill,  1010. 
Britton  v.  Hunt,  161. 

V.  Updike.  584. 
Broad  v.  Wickham,  760. 
Broaddus'  Heirs  v.  Potts,  1248. 
Brobst    V.    Brock,    76,    1032,    1247, 

1253. 
Brock  V.  Savage,  72). 
Brockvvay  v.  McClun,  138,  466,  516. 

V.  Wells,  1243. 
Broderick's  Will,  28. 
Brodribb  v.  Tibbets,  56,  328. 
Brolasky  v.  Miller,  411. 
Bronson  v.  Coffin,  1145. 

V.  Kinzie,  1025. 

V.  Lacrosse  &  M.  R.  Co.,  459. 
Brooke  v.  Bordner,  1027,  1077. 

V.  Morris,  411. 
Brooks  V.  Avery,  409,  411. 

V.  Byam,  982. 

V.  Forington,  354. 

V.  Greathed,  768,  824,  825. 

V.  Keister,  147. 

V.  Kelly,  683,  708. 

V.  Montgomery,  1232. 

V.  Smyser,   124. 

V.  Snaith,  626. 

V.  Vermont  Central  R.  Co.,  972. 
Broome  v.   Beers.    14,   29,   36,    179, 
482. 

V.  Taylor,  267. 
Broomell  v.  Anderson,  411. 
Broquet  v.  Sterling.  516,  1185. 
Brost  V.  Corey,  80. 
Brouwer  v.  Harbeck,  Z77. 
Broward  v.  Hoeg.  167,  209. 
Brower  v.  Brower,  827. 
Brown    v.    Atlanta    National    Bldg. 
&  L.  Ass'cn.,  196. 

V.  Bates.  95.  100. 

V.  Belles,  554. 

V.  Betts,  962. 

V.  Bigg,  58. 

V.  British  &  Amer.  Mortg.  Co., 
940. 

▼.  Brown.  53.  125,  329,  624.  640, 
704. 


CASES. 
to  Sections. 
Brown  v.  Burney,  928,  930. 

V.  Campbell,  843. 

V.  Campbello,  849. 

V.  Cascaden,  217,  221. 

V.  Chase,  792,  798,  819. 

V.  Cherry,  167. 

V.  Chesapeake  &  Ohio  Canal 
Co.,  9,  40. 

V.  Cole,  1136. 

V.  Connecticut  Mutual  Life  In- 
surance Company,  540. 

V.  Crookston  Agricultural  As- 
soc, 843.  850,  866. 

T.  Dean,  1029. 

V.  Delancey,  93. 

V.  Delaney,  916. 

V.  Dickerson,  498. 

V.  Elwell,  459. 

V.  Faile,  754. 

V.  Farley,  640. 

V.  Fitzpatrick,  540,  541. 

V.  Follette,   1029. 

V.  Frost,  575,  614,  620,  622,  623, 
624,  626,  627,  640,  644,  647, 
682. 

V.  Gafney,  1044,  1158. 

V.  Grove,  72. 

V.  Hayes,  72,  81. 

V.  Herman,  232. 

V.  Holden,  29. 

V.  James,  649. 

V.  Johnson,  201,  202,  692,  1234. 

V.  Keeney  Settlement  Cheese 
Assoc,  489,  491. 

V.  Kahnweiler,  337. 

V.  Kennicott,  334. 

V.  Lapham.  1126,  1205. 

V.  Mando,  380. 

V.  Mann,  301. 

V.  Marzyck,  659,  727. 

V.  McKay,  55,  62,  132,  573. 

V.  Nevitt,  179. 

V.  Nichols,  272. 

V.  Ogg,  353. 

v.  Orr,  161,  355. 

v.  Owen,  458. 

V.  Phillips,  265. 

V.  Pierce,  872. 


TABLE    OF 
References  are 
Brown  v.  Rockhol,  80. 

V.  Schintz,   11. 

V.  Scotland,  982. 

V.  Shearon,  335,  340. 

V.  Simons,  584,  602,  855,   1185, 
1209,  1215. 

V.  Smith,  952. 

V.  Snell,  92. 

V.  So.  Boston  Sav.  Bank,  1220, 
1221. 

V.  Stark,  1098. 

V.  Stead,  138,  146. 

V.  Stewart,  221. 

V.  Taylor,    17. 

V.  Thompson,  468. 

V.  Tyler,   17,  50,   106,  349,  579, 
683. 

V.  Volkening,  209,  213,  214,  489. 

V.  Webber,  1236. 

V.  Welch,  943. 

V.  Wentworth,  917,  929,  1177. 

V.  Wernwag,  964. 

V.  Willis,  754. 

V.  Woodbury,  412. 
Browne  v.  Blounte,  816. 

V.  Browne,  80,  967. 

V.  Davis,  609. 

V.  Lockhart,   127. 
Browning  v.  Marvin,  389,  511. 

V.  Sire,  762,  793. 

V.  Stacey,  793. 
Brownlee  v.  Arnold,  51,  65. 

V.  Martin,  1037. 
Bruce  v.  Manchester  &  K.  R.  Co., 
787,  829. 

V.  Nicholson,  182. 
Brugh  V.  Darst,  576. 
Brumfield  v.  Boutall,  369. 
Brundage   v.   Domestic   &   Foreign 
Missionary      Society,     213, 
484. 
Brundred  v.  Egbert,  16. 

V.  Walker,  146. 
Brunette  v.  Schettler,  104,  105. 
Brunk  v.  Means,  72. 
Brunner's  Appeal,  233. 


CASES.  1749 

to  Sectiom. 

Brunswick  Savings  &  Trust  Co.  v. 
National    Bank   of    Bruns- 
wick, 565. 
Bruschke  v.  Wright,  703,  704. 
Brush  v.  Mullany,  29,  31. 
Bryan  v.  Brennon,  508. 

v.  Butts,  13,  923,  954,  958,  960. 

v.  Cormick,  759,  813,  816,  825. 

v.  Kales,  679. 

V.  McCann,  127. 

V.  Pinney,  683,  685. 

V.  Scholl,  534. 
Bryant  v.  Carson  River  Lumbering 
Co.,  1067. 

V.  Damariscotta   Bank,  344. 

v.  Erskine,  1081. 

V.  Jackson,  1081. 
Bryar's  Appeal,  559. 
Bryce  v.  Bowers,  138,  165. 
Bryon  v.  Brasius,  679. 
Bryson  v.   McCrary,  702. 
Buchan  v.  Sumner,  872. 
Buchanan    v.    Berkshire    Life    Ins. 
Co.,  62,  798,  809,  822. 

v.  Monroe,  138,  146. 

V.  Reid,  1117,  1201. 

V.  Rowland,  72. 
Buck  V.  Axt,  335,  346,  351,  357,  403. 
438. 

V.  Colbath,  765,  1232. 

V.  Fischer,  120,  122. 

V.  Sanders,  147. 

V.  Sherman,  427. 
Buckheit  v.  Decatur  Land  Co.,  338. 
Buckingham  v.  Smith,  458. 
Buckley's    Assignee    v.    Steven-son, 

573. 
Bucklin  v.  Chapin,  511. 
Buckmaster  v.  Carlin,  14,  721. 
Buckner  v.  Sessions,  137,   177,  345. 
Buckout  V.  Swift,  302,  717. 
Budd  V.  Kramer,  339. 
Buehler  v.  McCormick,  417. 
Buell  V.  Shuman,  232. 
Buermann  v.  Buermann,  268. 
Buettel  v.  Harmount,  1179. 
Buffalo  V.  Balcom,  385. 


1750  TABLE   OF 

References  are 

Buffalo  Sav.  Bank  v.  Newton,  619, 

643.  654,  663. 
Buford  V.  Smith,  SO,  327. 
Builders'  Mortg.  Co.  v.  Berkowitz, 

651. 
Building  Association  v.  Crump,  982. 

V.  Piatt,  466. 
Building    &    Loan    Association    v. 

Logan,  JZZ. 
Building,  Loan  &  Savings  Associa- 
tion V.  Camman,  160. 
Bulkley  v.  Chapman,  114. 
Bull  V.  Coe.  280,  282,  285,  309. 

V.  Meloney,  338,  339. 

V.  Sink,  416. 

V.  Titsworth,  244. 
Bull's  Petition,  912,  952. 
Bullowa  V.  Orgo,  7. 
BuUard  v.  Green,  618. 

V.  Hinckley,  93. 

V.  Hinkley,  1165. 

V.  Leach,  183. 

V.  Raynor,  411. 

V.  Sherwood,  527. 
Bullwinker  v.  Ryker,  354,  527. 
Bumpus   V.   Platner,  422,  495,  496, 
500. 

V.  Willett,  360. 
Bunce  v.  Reed,  607,  917,  927,  940, 
953,  955.  956,  959. 

V.  West,  1074,  nil,  1244. 

V.  Wolcott,  1247. 
Bundy  v.  Cunningham,  136. 
Bunker  v.  Locke,  302. 
Bunn  V.  Braswell,  72. 

V.  Vaughan,  120. 
Burbank  v.  Pillsbury,  1145. 

V.  Warwick,  416. 
Burchard  v.  Frazer,  423. 

V.  Phillips,  893,  906. 
Burden  v.  McElhenny,  81. 

V.  Robinson,  1087. 
Burdette  v.  Clay,  115. 
Burdick  v.  Burdick,  220,  229,  253. 

V.  Jackson,  874. 
Buren  v.  Buren,  967. 

V.  Hunter,  967. 
Burge  V.  Chestnut,  571. 


CASES. 
to  Sections. 

Burgeois  v.  Gapen,  1206. 
Burger  v.  Hughes,  331. 
Burges  v.  Souther,  8. 
Burgess  v.  Hitt,  573. 

V.  Ruggles,  1135. 

V.  Sturges,  179. 
Burhans  v.  Hutcheson,  416. 
Burk  V.  Chrisman,  589.  600. 
Burkam  v.  Burk,  432. 
Burke  v.  Backus,  233,  319,  966,  973. 

V.  Baldwin,  966,  973. 

V.  Grant,  456. 

V.  Gummey,  244. 

V.  Miller,  1173. 

V.  Nichols,  495. 
Burkett  V.  Clark,  540. 
Burkham  v.  Beaver,  138. 
Burks  V.  Burks,  1177. 
Burleigh  v.  Keck,  719. 
Burley  v.  Flint,  1067,  1135,  1150. 
Burlingame  v.  Parce,  762,  763. 

v.  Parse,  792. 
Burlington  Mut.  Assoc,  v.  Heider, 

411. 
Burn  V.  Burn,  331. 
Burnell  v.  Martin,  310. 
Burnet  v.  Denniston,  914,  915,  931, 

932,  934,  936,  945,  1185. 
Burnett  v.  Hoffman,  94, 

v.  Pratt,  100. 

v.  Smith,  425. 
Burnham  v.  Allen,  49. 

V.  De  Bevorse,  146,  147,  172. 

v.  Dorr,  473. 
Burns  v.  Haile,  19. 

V.  Hobbs.  421. 

v.  Lynde.  1126. 
Burpee  v.  Parker.  312.  601. 
Burr  v.   Beers,  221,  242,  246,  247, 
250,  481. 

V.  Borden,  623. 

V.  Burr,  173. 

V.  Stenton,  885. 

v.  Veeder,  517,  753,  1020,  1185. 
Burroughs  v.  Ellis,  327. 

V.  Reiger.  152.  371. 
Burrow  v.  Henson,   1036. 
Burrowes  v.  Molloy,  51,  56,  802. 


TABLE 
References 
Burrows  v.  Malloy,  817. 

V.  Stryker,  206. 
Eurt  V.  Saxton,  51,  54,  56,  69,  70 
466,  467. 

V.  Thomas,  553. 
Burton  v.  Ba.xter,  91,  115,  200. 

V.  Burton,   1245. 

V.  Hintrager,  120,   193. 

V.  Lies,  155,  161,  165. 

V.  Linn,  664. 

V.  Perry,   1158. 

V.  Reagan,  477. 

V.  Robinson,   1087. 
Bury  V.  Hartman,  416. 
Busenbark  v.  Park,  213. 
Busenbarke  v.  Ramey,  431. 
Busey  v.  Hardin,  614,  656. 
Bush  V.  Babbitt,  257. 

V.  Bush,  430,  431. 

V.  Cooper,  79,  80. 

V.  Lathrop,   94,    106,    401,    415, 
418. 

V.  Livingston,  409. 

V.  Sherman,  623. 

V.  Thomas,  468. 

V.  Treadwell,  31. 

V.  Wadsworth,  489. 

V.  White,  623,  967. 
Bushey  v.  Nat.  State  Bank,  683. 
Bushfield  v.  Meyer,  43,  102. 
Bushwick  Sav.  Bank  v.  Traum,  911, 

1002. 
Bussey  v.  Page,  85. 
Bustard  v.  Gates,  721. 
Buswell  V.  Davis,  456. 
Butler  V.  American  P.  L.  Ins.  Co., 
473. 

V.  Blackman,  328. 

V.  Farry,  127. 

V.  Frazer,  792. 

V.  Ladue,  67,  310. 

V.  Miller,  392. 

V.  Myer,  459. 

V.  O'Hear,  667. 

V.  Page,  714,  716,  718. 

V.  Price,  474. 

V.  Seward,  1201. 

V.  Smith,  880. 


OF    CASES.  1751 

are  to  Sections. 

Butler  V.  Tomlinson,  152,  371. 

V.  Viele,  421. 

V.  Williams,  162,  165. 
Butner  v.  Blevins,  438. 
Butterfield     v.     Hungerford,     514, 
1003,  1022. 

V.  Kidder,  1178. 

v.  Kinzie,  344. 
Butters  v.  Butters,  9,  574,  576,  603, 

645. 
Buttron  v.  Tibbitts,  866. 
Butts     V.     Broughton,     1098,     1108, 

1121,  1223. 
Buxton  V.  Monkhouse,  771. 
Buzzell  V.  Still,  15. 
Byers  v.  Brannon,  144. 
Byington  v.  Walsh,  143. 
Byles  v.  Tone,  115. 
Bynum  v.  Frederick,  1007. 
Byrd  v.  Byrd,  1251. 

V.  McDaniel,  1247. 
Byrnes,  In  re,  705. 
Byrom  v.  Chapin,  302. 

V.  May,  18. 

c. 

Cable  v.  Ellis,  1189. 

V.  Minneapolis  Stock  Yards  & 
P.  Co.,  951. 
,       Cadwallader  v.  Cadwallader,  165. 
Cady  v.  Purser,  213,  482. 

v.  Sheldon,  253. 
Caesar  v.  Capell,  338. 
Cage  v.  Her,  103. 
,       Cain  v.  Gimon,  411. 

v.  Hanna,  116,  204. 
Cairncross  v.  Lorimer,  69. 
Calder  v.  Jenkins,  670. 
Caldwell  v.  Alsop,  717. 

v.  Caldwell,  610. 

v.  Cassidy,  49,  344. 

v.  Elebrecht,  43,  56,  58. 
Calhoun  v.  Calhoun,  48. 

V.  Tullass,  94,  115. 
California  v.  Webb,  473. 
California  Title  Ins.  Co.  v.  Miller, 
138. 


1752  TABLE 

References 
Calkins  V.  Calkins,  703,  1252,  1256. 

V.  Mansel,  1179. 

V.  State,  69. 
Call  V.  Leisner,  91. 
Callahan  v.  Boazman,  473. 

V.  Shaw,  762,  798,  812. 
Callen  v.  Ellison,  394. 
Callentine  v.  Cummings,  661. 
Callis  V.  Day,  395,  396. 
Calmes  v.  McCrocker,  155. 
Calverley  v.  Phelp,  167. 
Calvert  v.  Carter,  473. 
Calvin  v.  Wiggam,  70. 
Calvo  V.  Davies,  110,  112,  227,  242, 

243,  746. 
Camden  v.  Vail,  160. 
Camden  Safe  Deposit  &  Trust  Co. 
V.     Citizens'     Ice    &    Cold 
Storage  Co.,  459. 

V.  Dialogue,  127. 
Cameron  v.  Adams,  1070,  1146. 

V.  Culkins,  468. 

V.  Irwin,  610,  915,  942,  1185. 

V.  McFarland,  406. 
Cammack  v.  Johnson,  789. 
Camp  V.  Grider,  455,  488. 

V.  Peacock,  Hunt  &  West  Co., 
385. 

V.  Small,  94. 
Campbell  v.  Babcock,  411. 

V.  Bane,  178. 

V.  Bemis,  146. 

V.  Campbell,  155. 

V.  Carter,  1. 

V.  Cooper,  395. 

V.  Dearborn,  1029. 

V.  Gardner,  625. 

V.  Harmon,  174. 

V.  International  L.  Assur.  Soc, 
1141. 

V.  Johnson,  411,  458,  589. 

V.  Johnston,  103. 

V.  Knights,  155. 

V.  Macomb,  327,  Z2,2,  466,  570, 
574. 

V.  MmElevey,   1105. 

V.  Miller,  476. 

V.  Savage,  177. 


OF    CASES. 

are  to  Sections. 

Campbell  v.  Smith.  217,  248.  249. 

V.  Swan,  624,  627,  639. 

V.  Wallace,  679. 
Campion  v.  Kille,  183. 
Canada    Southern    R.    Co.   v.    Gab- 
hard,  130. 
Canaday  v.  Boliver,  526. 
Canadian  Southern  R.  Co.  v.  Geb- 

hard,  127. 
Candee  v.  Burke,  930,  935,  943,  949, 
952. 

V.  Lord,  654. 
Candler  v.  Pettit,  346. 
Canfield  v.  Morgan,  985. 

V.  Shear,  239,  553,  748. 
Canning  v.  Owen,  714. 
Canton  v.  Canton,  1246. 
Cantwell  v.  McPherson,  683. 
Cape  Girardeau  Company  v.  Harbi- 
son, 1247,  1252,  1256. 
Capehart  v.  Biggs,  945. 

v.  McGahey,  693. 
Capel  V.  Dill,  704. 
Capital   Bank  of   Topeka   v.    Hun- 
toon,  640. 
Carbine  v.  Sabastian,  213. 
Carew  v.  Johnson,  1256. 
Carey  v.  Guillow,  425. 

V.  Kutten,  416. 
Carhart  v.  Allen,  1006. 
Carleton  v.  Byington,  239. 

V.  Carleton,  263. 

V.  Tardy,  70. 
Carley  v.  Fox,  244,  743. 

V.  Vance,  49,  344. 
Carll  v.  Butman,  93,  148,  156. 
Carmichael  v.  Adams,  19. 

V.  Bodfish,  411. 
Carnahan  v.  Tousey,  356. 
Carnrick  v.  ]\Iyers,  533. 
Carolina    Savings   Bank  v.   McMa- 

hon,  669. 
Carow  v.  Kelly,  411. 
Carpenter  v.  Blackhawk  Gold  Min- 
ing Co.,  127,  913,  947. 

V.  Bowen,  1027. 

V.  Canal  Co.,  127. 

V.  Carpenter,  395. 


TABLE    OF 

References  are 

Carpenter  v.  Cooms,   1209. 

V.  Cummings,  456. 

V.  Easton  &  A.  R.  Co.,  982,  985. 

V.  Ingalls,  136. 

V.  Koons,  584,  595. 

V.  Longan,  94,  115,  416,  417. 

V.  O'Dougherty,  95,  106,  202. 

V.  Plagge,  1174,   1192. 

V.  Russell,  567,  576. 

V.  Zarbuck,  662. 
Carpentier    v.    Brenham,    113,    179, 
180. 

V.  Williamson,    146,    147. 
Carper  v.  Hawkins,  784. 

V.  Munger,  345. 
Carr  v.  Carr,  11. 

V.  Clough,  395. 

V.  Graham,  943. 
Carradine  v.  O'Connor,  18,  132,  310. 
Carriere  v.  Minturn,  1006,  1009. 
Carrington  v.  Brents,  367. 
Carroll  v.  Deimel,  19. 

V.  Forsyth,  81. 

V.  Green,  72>. 

V.  Haigh,  468,  680,  705,  713. 

V.  Rissiter,  1135. 
Carroll's  Will,  In  re,  1007. 
Carshore  v.  Huyck,  81. 
Carstens  v.  Eller,  540. 
Carter    v.    Builders'    Construction 
Co.,  545,  612,  1002. 

V.  Goodwin,  156. 

V.  Holahan.  239. 

V.  Hyatt,  660. 

V.  Longworth,  456. 

V.  Slocomb,  324,  922. 

V.  Torrance,  1147. 

V.  Walker,  50.  579,  683. 

V.  Wolfe,  72>,  75. 
Carters  v.  Eller,  545. 
Cartleyou  v.  Jones,  127. 
Cartly  v.  Graham,  734. 
Caruth-Byrnes     Hardware     Co.    v. 

Wolter,  19. 
Carver  v.  Brady,  912. 
Carwile  v.  Crump,  161,  165,  996. 
Gary  v.  Folsom,  584. 

V.  Wheeler,  155,  156,  741. 


CASES.  1753 

to  Sections. 

Caryl    v.    Williams,    342,    447,    451, 

478. 
Casamojor  v.  Strode,  652,  664. 
Casborne  v.  Scarfe,  1036. 
Casburne  v.  Inglis,  1125. 
Case  V.  Bartholow,  188.  209,  341. 

V.  Boughton,  17,  308,  964,  736. 

V.  Fry,  1119,  1200. 

V.  Mannis,  571. 

V.  Price,  166,  167,  1021. 
Case    Threshing    Machine    Co.    v. 

Mitchell,  573,  1105. 
Casey  v.  Buttolph,  85,  1050. 

V.  Doyne,  1023. 

V.  Mclntyre,  921. 
Cashman  v.    Henry,   247,   251,  257, 

746. 
Caslin  v.  State,  819. 
Cason  V.  Chambers,  474. 
Casoni  v.  Gerome,  399. 
Casper  v.  Munger,  92. 
Cass  V.  Martin,  1211. 
Cassada  v.  Stabel,  447,  464. 
Cassady  v.  Wallace,  627.  916. 
Cassell  V.  Ashley,  717. 
Cassem  v.  Henstis.  1140. 
Casserly  v.  Witherbee,  640. 
Cassidy  v.  Bigelow,  127. 
Cassilly  v.  Rhodes,  177,  717. 
Gassier  v.  Shipman,  1192. 
Caster  v.  Murray,  72). 
Castner  v.  Walrod,  73. 
Gates  V.  Mayes,  128. 
Catlin  V.  Glover,  1013. 

V.  Grissler,  517.  560.  831. 

V.  Murray,  1250. 

V.  Pedrick,  2>77,  378. 

V.  Ricketts,  271. 

V.  Ware,  351. 
Catterlin    v.    Armstrong,    179,    967, 

1105,  1220. 
Caufman   v.   Sayre,  29,   36,   50,   54, 

579,  966,  1028. 
Caulkins  V.  Bolton,  123,  133. 
Cave  V.  Cork,  120. 
Cayet  v.  Hubbell,  611,  664. 
Gazet  V.  Hubbell.  652.  664.  666. 


1754  TABLE    OF 

References  are 

Cecil  V.  Dynes,  50,  65,  335,  340,  752. 

V.  Salisbury,  395. 
Center  v.  Billinghurst,  537. 

V.  Planters'      and      Mechanics' 
Bank,  115,  367. 
Central  Applachian  Co.  v.  Buchan- 
an, 442. 
Central  Bank  v.  Earley,  683. 
Central  Bank  of  Troy  v.  Heydorn, 

76. 
Central   Gold  Mining  Co.  v.   Piatt, 

913,  947. 
Central  Nat.  Bank  v.  Clark,  654. 
Central  Pac.  R.  Co.  v.  Creed,  640, 

648. 
Central  Trust  Co.  v.  Charlotte,  C. 
&  A.  R.  Co.,  127. 
V.  Cincinnati,  J.  &  M.  R.  Co., 

664,  848,  850,  851. 
V.  Columbus   H.   V.   &   T.   Ry. 

Co.,  459. 
V.  Sloan,  460,   868. 
V.  St.  Louis   A.  &  T.  R.   Co., 

533. 
V.  United  States  Rolling  Stock 

Co.,  567. 
V.  Worcester    Cycle    Mfg.    Co., 
69. 
Cerf  V.  Ashley,  88,  529. 
Cerney  v.  Pawlot,  80. 
Chace  v.  Morse.  315,  318,  319,  929, 

1248. 
Chadbourn  v.  Johnston,  155,  163. 
Chadbourne  v.  Oilman,  30,  36. 
Chaddick  v.  Cook,  1234. 
Chaffee  v.  Franklin,  58. 
Chaffraix  v.  Packard,  561. 
Challis  V.  Wise,  660,  664. 
Chalmers  v.  Wright,  954,  955. 
Chamberlain  v.  Beck,  66,  333. 
V.  Chloes,  729. 
V.  Dempsey,  459.  508.  522.  526, 

529,  530,  543,  547,  1002. 
V.  Lyell,  213,  484.  485. 
V.  Stewart,  442. 
V.  Thompson,   1192. 
Chambers  v.  Cox,  448.  464.  500. 
V.  Goldwin,  198,  813. 


CASES. 

to  Sections. 

Chambers    v.    Marks,    583. 

V.  Nicholson,  159. 

V.  Union  Nat.  Bank,  793. 
Chamblee  v.  Broughton,  721. 
Chambovet  v.  Cagney,  267. 
Champenois  v.  Fort,  473. 
Champion,  Re,  852,  887. 

V.  Brown,  121. 

V.  Hinkle,  682,  712,  964. 

V.  Joslyn,  1220. 

V.  Plymouth        Congregational 
Church,  779. 
Champlin  v.  Foster,  137,  211. 

V.  Laytin,  421.  423,  427,  433. 

V.  Williams,   113. 
Champney  v.  Coope,  1050. 
Chancellor  v.  Traphagen,  529. 
Chandler  v.  Dyer,  183,  1087. 

V.  McKinney,  974. 
Chandler  v.  Peters,  938. 

V.  Whitely,  182. 
Chapin  v.  Broder,  755. 

V.  Freeland,  683. 

V.  Jones,  1232. 

V.  Shafer,  395,  396. 

V.  Weed,  609. 

V.  Wright,     1032,     1053,     1150, 
1247,  1252,  1256. 
Chaplin  v.  Young,  999. 
Chapman    v.    Androscoggin    R.    R. 
Co.,  1059. 

V.  Beardsley,  242. 

V.  Corpse,  1247. 

V.  Draper,  152,  374. 

V.  Lester,  603. 

V.  Robertson,  440,  441. 

V.  Rose,  400. 

V.  Turner,  1036. 

V.  West,  150,  209,  374,  584. 

V.  West,  impl'd.,  152. 
Chappell  V.  Allen,  93. 

V.  Boyd,  799. 

V.  Chappell,  620. 

V.  Dann,  609. 

V.  Rees,  171. 
Chard  V.  Holt,  196. 
Chare  v.  Woodbury,  1180. 
Charlton  v.  Tardy,  70. 


TABLE    OF 

References  are 

Charter  v.  Stevens,  964. 

Chase's    Case,    761,    785,    792,    797. 

1029. 
Chase  v.  Brown,  412,  443. 

V.  Chase,  665. 

V.  Cleburne    First    Nat.    Bank, 
62,  617,  628. 

V.  Hubbard,  233. 

V.  McLellan,  10,  1145. 

V.  Miser,  983. 

V.  New    Orleans    Gaslight    Co., 
49. 

V.  Peck,  85,  330,  331. 

V.  Wingate,  490. 

V.  Woodbury,     584,     602,     855, 
1208,  1209,  1212. 
Chatenond  v.  Herbert,  406. 
Chatfield  v.  Hewlett,  510. 
Chautauqua  County  Bank  v.  White, 

759,  786,  796. 
Chauncey  v.  Arnold,  331. 
Chavener  v.  Wood,  1105. 
Chessborough  v.  Hunter,  53. 
Cheesebrough  v.  Millard.  600,  602, 

1209. 
Cheever  v.  Perley,  74,  75,  76,  79. 
Cheltenham    Improvement    Co.    v. 

Whitehead,  127,  983,  1107. 
Cheney  v.  Fatten,  412. 

V.  Woodruff,  681,  758. 
Cherry  v.  Bowen,  1036,  1038. 

V.  Monro,   112,  138. 
Cheshire  v.  Barrett,  395,  396. 
Chesney  v.  Chesney,  Zi7. 
Chester  v.  King,  234. 

v.  Wheelwright,  473. 
Chesterman  v.  Eyland,  2)27. 

V.  Gardner,  422,  495,  496. 
Chetwood  v.  Coffin,  798,  799. 
Chew  v.  Brumagen,  106,  201. 

v.  Hyman,  1098,  1151. 
Chicago  &  G.  W.  R.  L.  Co.  v.  Peck, 

166,  168,  542,  601,  616. 
Chicago  &  O.  R.  R.  Co.  v.  McCam- 

mon.  700. 
Chicago  &  V.  R.  Co.  v.  Fosdick.  977. 


CASES.  1755 

to  Sections. 

Chicago,  D.  &  V.  R.  Co.  v.  Fosdick, 
56,  130,  1027,  1033,  1232. 
v.  Loewenthal,  417. 
Chicago,  K.  &  W.  R.  Co.  v.  Nashua 

Savings  Bank,  294. 
Chicago,  M.  &  St.  Paul  R.  Co.  v. 
Keokuk      Northern      Line 
Packet  Co.,  787. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  How- 
ard, 127,  690. 
Chicago    Theological    Seminary    v. 

Gage,  213,  488. 
Chicago  Title  &  Trust  Co.  v.  Aff, 

417. 
Chick  v.  Rollins,  74,  75,  79. 
Chickering  v.  Failes.   146,  147,  172. 

V.  Fullerton,  150. 
Child  V.  IMorgan,  294,  308,  333. 

V.  Singleton,  345. 
Childress  v.  Monette,  1105. 
Childs    V.    Childs.    109,    147,    1113, 
1172,  1234. 
V.  Dolan,  310,  716. 
V.  Ferguson,  660. 
V.  Hill,  918. 
Chillicothe  P.  Co.  v.  Wheeler,  609. 
Chilton    V.    Brooks,    179,    314.    320, 

618,  630,  639,  917,  944. 
Chilver  v.  Weston,  180. 
Chinnery  v.  Evans,  81,  787. 
Chiswell  V.  Morris,  155,  1134. 
Cholmondeley   v.    Clinton,   83,    140, 

170,  1150,  1247,  1252. 
Choppell  v.  Rees,  170. 
Chosen    Friends    Home    L.    &    S. 

League  v.  Otterson,  19. 
Chouteau  v.  Allan,  22. 
V.  Allen,  18,  176. 
V.  Goddin,  458. 
Chrisman  v.  Chenoweth,  203.  338. 
Christian  v.  Cabell,  676. 
V.  Dripps,  714. 
V.  Green,  469. 
Christie  v.  Flerrick.  92,  94,  131,  166, 
168,  185,  187,  197,  198,  201. 
Christopher  v.  Sparke,  75. 
Christy  v.  Dana,  488. 
V.  Flemington,  81. 


1756 


Church  V.  Brown,  51. 
V.  Bull,  351. 

V.  Fisher,  464,  496,  500. 
V.  Kidd,  986. 
Churchill  v.  Morse,  872. 
Chute  V.  Noris,  683. 
Cicotte  V.  Gagnier,  416. 
Cilley  V.  Huse,  1237. 
Cincinnati  Cordage  &  Paper  Co.  v. 
Dodson     Printers'     Supply 
Co.,  843. 
Cincinnati    Hotel    Co.    v.    Central 

Trust  &  S.  D.  Co.,  54. 
Cincinnati  U.  &  Ft.  W.  R.   Co.  v. 

Pearce,  71. 
Cissna  v.  Haines,  392,  576,  584. 
Citizens'  Bank  v.  Benachi,  401. 
V.  Johnson,  81. 
V.  Knapp,  302. 

V.  Los    Angeles    Iron    &    Steel 
Co.,  338. 
Citizens'  Bank  &  Trust  Co.  v.  Dill, 

Zl,  38. 
Citizens'     Bank     of     Louisiana     v. 

Webre,  385. 
Citizens  Loan  &  Trust  Co.  v.  Witte, 

354. 
Citizen's  Nat.  Bank  v,  Dayton,  120, 

430. 
Citizens'    Savings    Bank    v.    Bauer, 
503,  524,  525,  530. 
V.  Mooney,  880. 
V.  Van  Tassel,  910. 
City  Bank  of  New  Orleans  v.  Wal- 

den,  365. 
City  of  Lexington  v.  Butler,  368. 
City  of  Lincoln  v.  Lincoln  Rv.  Co., 

535. 
City  of   San   Francisco  v.  Lawton, 

484,  486,  488. 
City  of  St.  Louis  v.  Gorman,  1226. 

V.  Priest,   17. 
Claflin  V.  Reese,  253. 
Claflin,    H.    B.    Co.    v.    Middlesex 

Banking  Co.,  1029. 
Clagett  V.  Salmon,  798. 
Clapp  V.  Hadley.  843,  850. 
V.  Hodlev,  850. 


TABLE    OF    CASES. 
References  are  to  Sections. 

Clapp  V.  Maxwell,  225,  273,  734,  737, 
754,  756. 
V.  McCabe,  534,  692. 
V.  Pawtucket     Inst,     for     Sav., 
852. 
Clark's  Case,  860,  873. 
Clark,  In  re,  765. 

V.  Baker,  488,  967,  1027. 

V.  Barlow,  53. 

V.  Bush,  514. 

V.  Carnal!,  831. 

V.  Clark.  385.  401,  855,  856. 

Cluff,  1252. 

Condit,  913,  1037. 

Coudit,  1039. 

Crosby,  1144. 

Dales,  466,  467. 

Davis,  434. 
V.  Elmendorf,  70,  466. 
V.  Fontain,  1065. 
V.  Hagar,  8. 
V.  Havard,  11. 
V.  Havens,  379. 
V.  Hennafeldt,  1247. 
V.  Henry,  11.  349,  1029,  1038. 
V.  Johnston,  801. 
V.  Jones,  556. 
V.  Kraker,  624. 
V.  Lock.  484. 
V.  Lyon,  528.  1029. 
V.  Mackin,  198,  354,  1105,  1177. 
V.  ]\Iunroe,  51. 
V.  Potter,  1249,  1252,  1256. 
V.  Reed,  982,  985. 
V.  Renaker,  1167. 
V.  Reyburn,   166,   167,    170,  302, 
977,  1025,  1113,  1123.   1236. 
V.  Ridgely,  783. 

V.  Seagraves,    1029,    1191,    1218. 
V.  Simmons,  640,  641,  738,  754, 

937. 
V.  Stilson,  992. 
V.  Wentworth,  92. 
V.  Wolf,  618. 
Clarke  v.  Bancroft,  392. 
V.  Burke,  918.    • 
V.  Chamberlin,  552. 
V.  Prentice,  211. 


TABLE    OF 

References  arc 

Clarke  v.  Turton,  387. 
Clarkson  v.  Creely,  1033. 

V.  Graham,  469. 

V.  Read.  666. 

V.  Skidmore,  177,  839,  840,  847, 
858,  885. 
Clarksville      Building     and      Loan 

Asso.  V.  Stephens,  550. 
Clary  v.  Marshall,  180. 

V.  Owen,   1128. 

V.  Schaack,  944. 
Clas  V.  Bappe,  610. 
Clason  V.  Corley.  177,  681,  708,  718, 

719,  758,  792. 
Clawson  v.  McCune,  75. 

V.  Munson,  1003. 
Clay  V.  Clay,  73. 

V.  Hildebrand,  352,  431. 
Clayton  v.  Whitaker,  583. 
Clearwater  v.  Rose,  93. 
Cleavenger  v.  Beath,  340. 
Cleaver  v.  Green,  640,  944. 
Clegg  V.  Fishwick,  763. 
Qemens  v.  Clemens,  721. 

V.  Luce,  43,  49,  62. 
Clement    v.    Ireland,    663. 

V.  Shipley,  715. 
Clement's  Estate,  In  re,  1078. 
Clementi,  In  re,  v.  Jackson,  1185. 
Clements  v.  Griswold,  117,  180,  304. 

V.  Robinson,  719. 
Clerkson  v.  Bowyer,  120,  122. 
Cleve  V.  Veer,  537. 
Cleveland  v.  Boerum,  14.  150,  151, 
172,  173,  367,  374,  375. 

V.  Booth,  56. 

V.  Clark,  1185. 

V.  Cohrs,  114.  133. 

V.  Harrison,  80. 

V.  Southard,  239. 
Clevinger  v.  Ross,  943. 
Clift  v.  White.  1050. 
Clingman  v.  Hopkie,  1059. 
Cline  V.  Inlow.  146. 
Clinton  V.  South  Shore  Natural  Gas 

&  Fuel  Co.,  183. 
Clinton  Co.  v.  Cox,  80,  82,  1251. 
Clost  V.  Gillespey,  711. 


CASES.  1757 

to  Sections. 

Clove  V.  Lambert,  714. 
Clow  V.  Derby  Coal  Co.,  94,  150. 
Clower  V.  Rawlings,  50,  579. 
Clowes  V.  Dickinson,  493,  584,  1209. 

V.  Hughes,  1247. 
Cloyes  V.  Thayer,  410. 
Clute  V.  Robinson,  415,  416. 
Clyde  V.  Johnson,  843. 
Clyne  v.  Benicia  Water  Co.,  683. 
Coates  V.  Cheever,  1050. 
Cobb  V.  Dyer,  110. 

V.  Fishel,  746. 

V.  Thornton,  224,  225,  527,  734, 
735,  754,  755. 
Coburn  v.  Ames,  830. 
Cochran  v.  Folger,  381,  725. 

V.  Goodell,    100,    116,  204,   214, 
973. 
Cock  V.  Bailey,  738. 
Cockburn  v.  Raphall,  784. 

V.  Thompson,  88. 
Cocke  v.  McGinnis,  73. 
Cocker's  Case,  246. 
Coddington  v.  Bispham,  790. 
Codrington  v.  Johnston,  790. 

v.  Johnstone,  302,  308,  717. 

V.  Park,  815. 

V.  Parker,  812,  813. 
Codwise  v.  Gelston,  874. 
Coe  V.  Manseau,  177. 

V.  New  Jersey  Midland  R.  Co., 
213. 

V.  Rockman,  649. 
Cofer  V.  Echerson,  793. 
Coffin  V.  Cooper,  675. 

V.  Heath,  974. 

V.  Lesster,  263. 

V.  Loring,  349. 
Cohen  v.  Biber.  380. 

V.  Levy,  380,  381. 

V.  Solomon,  196. 

V.  Thomson,  72. 
Cohn  V.  Franks,  719. 

V.  Hofifman.  1116. 

V.  Souders,  591.  601. 
Cohoes  V.  Goss,  912,  916,  923,  958. 
Cohoes  Co.  V.  Gross,  954. 


1758 


TABLE    OF    CASES, 
References  arc  to  Sections. 


Coit  V.  McReynolds,  721. 

Coker  v.  Smith,  146. 

Colby  V.  McOmber,  277,  279.  914. 

V.  Poor,  914. 
Colchester  Savings  Bank,  v.  Brown, 

597. 
Coldcleugh  v.  Johnson,  75. 
Cole  V.  Connor,  36. 

V.  Gourlay,  174. 

V.  Hinck,  43,  50,  64. 

V.  Kelly,  637. 

V.  Malcolm,  1177. 

V.  Miller,  618. 

V.  Moffitt,    137,    165,   912,   917, 
918,  921,  922. 

V.  Robertson,  165. 

V.  Savage,  945. 

V.  Ward,  26. 
Cole  V.  Willard,  661. 
Colehour  v.   State  Savings  Institu- 
tion, 147,  417. 
Coleman  v.  Goodman,  771. 

V.  McKee,  320. 

V.  Salisbury,  759. 

V.  State,  529. 

V.  Van  Ransselaer,  227,  342. 

V.  Whitney,  48. 

V.  Witherspoon,  180,  401,  451. 
Coles  V.  Appleby,  584,  1209. 

V.  Forrest,  119,  150,  163,  167. 

V.  Jones,  418. 

V.  Withers,  80. 

V.  Yorks,  623. 
Colgan  V.  Dunne,  235. 

V.  McNamara,  917,  918. 
Colgrove  v.  Tallman,  177,  594. 
Collar  V.  Harrison,  1010,  1012. 
Collamer  v.  Langdon,  120. 
College   Point   Sav.   Bank  v.   Voll- 

mer,  676. 
Collerd  v.  Huson,  103. 
Colley  V.  Murray,  598. 
Collier  v.  Ervin,  361. 

V.  Miller,  740. 

v.  Whipple,  622,  626,  640,  647. 
Collignon  v.  Collignon,  281. 
Collins,  In  re,  273. 
Collins,  Matter  of,  217, 


Collins'  Petition,  11,  273. 
Collins  V.  Bane,  81. 

V.  Carlile,  341. 

V.  Cunningham,  564,  588. 

V.  Gregg,  1147. 

V.  Hanson,  468. 

V.  McArthur,  628. 

V.  Riggs,  1134,  1139,  1173,  1191. 

V.  Rowe,  239,  244,  746,  748. 

V.  Ryan,  262. 

V.  Scott,  161,  1135,  1144. 

V.  Shirley,  138,  172. 

V.  Standish,  1012,  1014,  1015. 

V.  Torry,  74,  75,  79. 
Colman  v.  Duke  of  St.  Albans,  718. 

V.  Past,  465. 
Colonial    &    U.    S.    Mort.    Co.    v. 

Sweet,  620,  626. 
Colony  v.  ViUingsley,  628. 
Colton  v.   Simmons,  1021. 

v.  Smith,  140. 
Colton  Imp.  Co.  v.  Richter,  417. 
Columbia   Finance  &  Trust  Co.  v. 
Kentucky   U,    R,   Co.,   136, 
1168. 
Colvin,  In  re,  785. 

V.  Buckle,  67. 
Colwell  V.  Warner,  1107. 

V.  Woods,  1029. 
Coman  v.  Peters,  60. 
Comely  v.  Dazian,  250. 
Comer  v.  Bray,  88. 

v.  Sheehan,  1044. 
Comly  V.  Hendricks,  213. 
Commercial  Bank  v.  Catto,  640. 

v.  Western  Reserve  Bank,  1209. 
Commercial     Bank    of    Buffalo    v. 

Warren,  468. 
Commercial  Bank  of  Lake  Erie  v. 
Western      Reserve      Bank, 
584. 
Commercial  Bank  of  New  Jersey  v. 

Reckless,  394. 
Commercial  Bank  of  Santa  Ana  v. 

Kershner,  285. 
Commercial  Mat.  Bank  v.  Gaukler, 
516. 

V.  Johnson,  36,  1006. 


TABLE    OF    CASES. 
References  are  to  Sections. 


1759 


Commercial  Real  Estate  &  Building 
Loan    Association    v.    Par- 
ker, 1036,  1040,  1105,  1109, 
1233. 
Commercial  Savings  Bank  v.  Cor- 

bett,  772. 
Commonwealth  v.  Louisville  Trust 
Co.,  278. 
V.  McClanachan.  422. 
V.  Pittsburgh,  419. 
V.  Ragsdale,  727. 
V.  Robinson,  624. 
V.  Watmough,  133. 
Commonwealth    Mort.    Co.    v.    De 

WaltoflF,  683. 
Commonwealth    Title    Ins.    Co.    v. 

Cummings,  423. 
Compton   V.  Jones,   106,  201. 
Comstock  V.  Comstock,  212,  213. 
V.  Drohan,  273.  743,  744,  745. 
V.  Johnson,   1192. 
V.  Michael,  514. 
V.  Smith,   488. 
Conard  v.  Atlantic  Ins.  Co.,  872. 
Conaway  v.  Carpenter,  440. 
Concklin    v.    Coddington,   982,   987, 

988,    995. 
Conclin  v.  Grand  Cent.  Sav.  &  Bldg. 
Ass'c,  640. 
V.  Hall,  671. 
Concord  M.  F.  Ins.  Co.  v.  Wood- 
bury, 482. 
Conde  v.  Shepard,  154,  228. 
Condict  V.  Fowler,   1002. 
Condit  V.  Goowkin,  144,  715. 

V.  Maxwell,   590. 
Condon  v.  Marley,  718. 
Cone  V.  Coombs,  793,  803. 

V.  Paute,    762. 
Conger  v.   Ring,  609. 
Conklin  v.  Parsons,  490. 
Coiikling  V.  Butler,  827. 
Conn  V.  Rhodes,  220. 

V.  Towner,  38. 
Connecticut  Mutual  Life  Ins.  Co.  v. 
Buhe,  516. 
V.  Cornwell,    136. 
V.  Crawford,   1087,    1176. 


Connecticut  Mutual  Life  Ins  Co. 
V.  Cushman,  1041,  1135, 
1139,  1173,  1176,  1191. 

V.  Tyler,  227. 

V.  Westerhoff,  43,  50. 
Connick  v.  Hill,  576,  609.  624,  637, 

640. 
Connelly  v.  Dickson,  758,  762,  823. 
Connely  v.  Rue  623.  634. 
Conner  v.  Smith,  1220. 
Connerton  v.  Millar,  308,  485. 
Connolley's  Ex'r  v.  Beckett,  686. 
Connolly  v.  Belt,  604. 
Connor  v.  Connor,  1026,  1027. 
Connors  v.  Holland,  324. 
Conover  v.  Grover,  790. 

V.  Hobart,  411,  459. 

v.  Palmer,   1135,    1138. 

V.  Porter,    155. 

V.  Van  Mater,  417. 

V.  Walling,    627. 
Conrad  v.  Gibbon,   1004. 

V.  Harrison,  584,  1209. 

V.  Waples,   1251. 
Conradt  v.  Lepper,  407. 
Conshohocken    Tube    Co.    v.    Iron 

Car  Equipment  Co.,  12. 
Constant    v.     American     Bap.    &c. 

Soc,  487. 
Contee  v.  Dawson,  20. 
Continental  Ins.  Co.  v.  Reeve,  664, 

718,  850. 
Continental    Mutual    Life    Ins.    Co. 

V.  Reeve,   1087. 
Continental  Nat.  Bank  v.  Nat.  Bank 

of  Com.,  454. 
Contributors,  The,  v.  Gibson,  58. 
Convers   v.   Clay,   624. 
Converse  v.  Blumrich,  335,  424,  428. 

V.  Cook,  242,  978. 

v.  Michigan  Dairy  Co.,  1105. 
Conway  v.  Case,  500. 

V.  Shrimpton,  1256. 
Conwell  V.  Clifford.  401,  500. 

V.  McCowan,  113. 
Cook  V.  Barnes,  409. 

V.  Citizens'  Bank.  786. 

V.  Detroit  G.  H.  &  M.  R.  Co.,  2. 


1760  TABLE 

References 

Cook  V.  Dillon,  880. 

V.  Eaton,  71. 

V.  Farren,  667,  675. 

V.  Finkler,  1247. 

V.  Foster,  917,  961. 

V.  Fuson,   445. 

V.  Gilchrist,  983,  1003,  1007. 

V.  Gwyn,    822. 

V.  Kraft,  857,  869,  1020. 

V.  Mancius,  863,  1114. 

V.  McFarland,  1038. 

V.  Moulson,  754. 

V.  Parham,  75. 

V.  Rounds,  402. 

V.  Shorthill,  535,  983,  1003, 1007. 

V.  Whipple,  1174. 

V.  Woodruff,  480. 

V.  Young,  694. 
Cookes  V.   Culbertson,  80. 
Cool  V.  Crommet,  294. 
Coolbaugh  v.  Roemer,  640. 
Cooley  V.  Hobart,  220,  401. 
Coolidge  V.  Smith,  257,  1145. 
Coombe  v.  Jordan,  1201. 
Cooney  v.  Coppock,  1248. 
Coope  V.  Creswell,  816,  999. 
Cooper  V.  Bigley,  584. 

V.  Burr,  259. 

V.  Davis,    302. 

V.  Denne,   667. 

V.  Dennie,  667. 

V.  Hornby,   1044. 

V.  Hornsby,  941,   1105. 

V.  Loughlin,  698. 

V.  Martin,  146,  180,  610,  1105. 

V.  Maurer,  1082. 

V.  Newland,  114.  513. 

V.  Ryan,  545,  663,  686. 

V.  Smith,  92. 

V.  Whitney,   1036. 
Cope  V.  Humphreys,  73. 

V.  Wheeler,  410,  839,  892. 
Copeland  v.  Yoakum,  1029. 

V.  Yoakum's  Adm'r,  1234. 
Copenrath   v.   Kienby,  397. 

V.  Kienley,  397. 
Copper   Belle   Mining   Co.   v.    Cos- 
tello.  50,  56. 


OF    CASES. 

are  to  Sections. 

Copper  Hill  Mining  Co.  v.  Spencer, 

762. 
Copsey  V.  Sacremento  Bank,  320. 
Corbett  v.  Clute,  406. 
V.  Howell,  610. 
V.  Norcross,  458. 
V.  Waterman,  242,  243. 
V.  Woodward,  417. 
Corcoran  v.  Doll,  815. 

V.  Hinkel,  311. 
Cord  V.  Hirsch,  146,  148,  533. 

V.  Southwell,  578. 
Corder  v.  Morgan,  913. 
Corey  v.  Long,  789. 
Coring  v.  Smith,  422. 
Corkhill  v.  Landers,  458. 
Corliss  V.  McLagin,  714. 
Cormerais  v.  Genella,  220,  225,  310. 
Corn   E.   Ins.   Co.  v.  Babcock,  232, 

233. 
Cornell  v.  Corbin,  421. 
V.  Hichens,  499. 
V.  Newkirk,    547,   917. 
V.  Prescott,   112,   113,   140,  481. 

743. 
V.  Woodruff,     225,     753,     831, 
1185. 
Cornelius  v.  Halsey,  337,  338,  342, 

345. 
Corning  v.  Baxter,  509. 
V.  Muray,  419. 
V.  Smith,    210,    213,    332,    484, 

485. 
V.  Bryan,  416. 
Cornwall  v.   Falls   City  Bank,  561. 
Cornwell  v.  Clifford,  464. 
Corriell  v.  Doolittle,  610. 
Corson  v.  McDonald,  1008. 
Cortelyou  v.  Jones,  338. 
Cortland    Sav.    Bank   v.    Lighthall, 

547. 
Cortleyeu    v.    Hathaway,    792,    794, 

801,  812,  816,  817. 
Corwith  V.  Barry,  620,  626. 
Cosborne  v.  Inglis.  1108. 
Cosby  V.  Powers,  628. 
Coster  V.  Bank  of  Georgia,  872. 
V.  Clark,    147 


TABLE 
References 

Costigan  v.  Costigan,  992. 

V.  Truesdell,  713. 
Cotheal  v.  Blydenburgh,  409,  410. 
Cotterell  v.  Button,  1251. 
Cottingham  v.  Springer,  1038. 
Cotton  V.  Blocker,  102. 
Cotton  V.  Horton,  547. 
Cottrell  V.  New  London  Fur.   Co., 

742. 
Couch  V.  Millard,  986. 
Coudert  v.  DeLogerot,  574,  628,  640. 
Coudrey  v.  Coit,  498. 
Coulson  V.  Coulson,  427. 
Coulter  V.  Bower,  ZZ7,  360. 

V.  Henderson,  664. 
County  Bank  of   San  Luis  Obispo 
V.  Goldtree,  567,  1003,  1008. 
County  of  Dubuque  v.  Koch,  217. 
County   of    Floyd   v.    Cheney,    180, 

191. 
Couper  V.  Shirley,  762. 
Coursen's   Will,   193. 
Courson  v.  Van  Syckle,  464. 
Couse  V.  Boyles,  434. 
Cousin  V.  Allen,   1121. 
Coutant  V.   Servoss,  395,  396. 
Covell    V.    Tradesman's    Bank,   418. 
Covenhoven  v.  Seaman,  71. 
Cover  V.  Black,  872. 
Covey  V.  Pittsburgh  F.  W.  &  C.  R. 

Co.,  490. 
Coward  v.  Chadwick,  820. 
Cowden's  Estate,  584. 
Cowdrey  v.  Turner,  951,  957. 
Cowen  V.  Arnold,  718. 
Cowing  V.  Cloud,  416. 

V.  Rogers,   1215. 
Coyles  V.  Marble,  1172,  1234. 

V.  Whitman,  982,   985. 
Cowlin  V.  Hart  well,  1192. 
Cox    V.    Amer.    Freehold    &    Land 
Mortg.  Co.,  1248. 

V.  Bennet,  71,  466. 

V.  Esteb,  431. 

V.  Garst,    1211. 

V.  Kille,  43. 

V.  McBurney,  58. 

V.  Montgomery,  623. 

Mortg.  Vol.  n.— 111. 


OF    CASES.  1761 

are  to  Sections 

Cox  V.    Ratcliff,    1145. 

V.  Smith,    1003. 

V.  Vickers,   137,   177. 

V.  Wheeler,   112,  327,  H67,  915, 
941,  942,  951. 
Coy  V.  Downie,  496. 
Coyle  V.  Wilkins,  1247. 
Craddock    v.     American     Freehold 
Land    Mortgage   Company, 
17,  610. 
Craft  V.  Bullard,  1213. 
Crafts  V.  Aspinwall,  493,  584. 

V.  Crafts,  1129. 
Cragin  v.  Lovell,  971. 
Craig  V.   Parkis,  253. 

V.  Parks,  254. 

V.  Tappen,  964. 

V.  Tappin,  1174. 

V.  Ward,  374,  1114. 
Crain  v.  McGoon,  468. 
Craine  v.  Paine,  80. 
Craithers  v.  Stuart,  1129. 
Cram    v.    Bradford,    508,    510,    530, 
531. 

V.  Mitchell,  906. 
Crambie  v.  Little,  538. 
Cramer  v.  Kebman,  583. 

V.  Lepper,  411,  459,  461. 
Crane  v.  Aultman  Taylor  Co.,  516. 

V.  Brigham,   714. 

V.  Conklin,  640. 

V.  Hanks,  978. 

V.  March,  418. 

V.  McCoy,  762,   76Z. 

V.  Stiger,  619.  652,  654.  663. 

V.  Turner,  94.  416. 

V.  Ward,  56,  58. 
Cranston  v.  Crane,  1032. 
Crassen  v.  Swoveland,   1029. 
Craver  v.  Wilson,  403. 
Crawford  v.  Edwards.  243,  459,  743. 

V.  Foreman,  644,  686. 

V.  Mumford,   209. 

V.  Ross,  799. 

V.  Taylor,  180,  1135,  1140,  1247, 
1249. 
Creath's  Adm'r  v.  Sims,  70. 


1762  TABLE 

References 

Credit    Froncier     Franco-Canadien 

V.  Andrew,  288. 
Creighton  v.  Paine,  722,  723. 

V.  Proctor,  76,  79. 
Creech  v.  Abner,  360. 
Crenshaw  v.  Seigfried,  561. 

V.  Thackston,    138,    140. 
Crescent  Min.  Co.  v.  Wasatch  Min. 

Co.,  276,  402. 
Cresco  Realty  Co.  v.  Clark,  60,  63. 
Cresinger  v.  Welch,  395. 
Cressey  v.  Parks,  1141, 
Cresson  v.  Stout,  492. 
Crews  V.  Burcham,  488. 

V.  Pendleton,  717. 

V.  Treadgill,   1220. 
Cridge  v.  Hare,  420. 
Crine  v.  White,  523. 
Crippen  v.  Culver,  672. 
Crisman  v.  Lanterman,  602. 
Crisp,  Ex  parte,  1124. 
Cristie  v.  Herrick,   131. 
Criswold  v.  Bardon,  663. 
Critcher  v.  Walker,  227,  1151. 
Crocker  v.  Bellangee,  385. 

V.  Gallner,   667. 

V.  Thompson,  476. 
Croden  v.  Drew,  259. 
Croft  V.  Bunster,  412,  416,  499. 

V.  Powell,  913. 
Crogan  v.  Minor,  213. 
Croghan  v.  Livingston,  269. 
Crombie  v.  Little,  951. 

V.  Rosenstock,  886, 
Cromlin  v.  Brink,  1141. 
Crompton  v.   Pratt,  473. 
Cromwell   v.   Hull,   664. 

V.  MacLean,  212. 
Crone  v.  Citizens'  Bank  of  Louisi- 
ana, 75. 
Cronkhite  v.  Buchanan,  661. 
Crook  V.  Findley,  830. 

V.  Glenn,  75,  1247. 
Crooke  v.  O'Higgins,  137,  138,  139, 

144. 
Crooker  v.  Holmes,  80,   1229. 

V.  Jewell,  92. 

V.  Parsons,  44. 


OF    CASES. 
are  to  Sections. 

Croper  v.  Coburn,  28. 

v.  Mellersh,  167. 
Crosby  v.  Dowd,  21,  357,  358. 
V.  Farmers'  Bank,  573,  584. 
V.  Washburn,    12. 
V.  Wiatt,  467. 
Crosier  v.  Acer,  71. 
Crosman  v.   Fuller.  465. 
Cross  V.  De  Valle.  220. 
V.  Hedrick,    623. 
V.  Hendrick,  623. 
V.  Leidich,  544.  554.  628. 
V.  Robinson,  482.  1060. 
Crossman  v.  Card.  1214,  1244. 
Crow  V.  Vance,  115.  256. 

V.  Wood,    780. 
Crowder  v.  ]\Ioone,  820. 
Crowe  V.  Kennedy,   1010. 
Crowell   v.    Currier,   242,   247,   251. 
V.  Hospital,  242,  244,  246,  251. 
Crum  V.  Cotting,  196. 
Crummett  v.  Littlefield,  1185.  1234. 
Cruner  v.  Ruffner,  620. 
Crutchfield  v.  Coke,  220,  7^7. 

V.  Hewett,  543,  606,  607,  623. 
Cryst  V.   Cryst,   120,   122. 
Cubberly  v.  Yager.  743. 
Cuilerier  v.  Brunelle,   1082. 
Cullop  V.  Leonard,  652. 
Cullum  V.  Batre,  179. 
V.  Branch  Bank,  422. 
V.  Emanuel,  1033. 
V.  Erwin,    102. 
Culph  V.  Phillips,  341. 
Culver  v.  Badger,  244,  257. 
V.  BrinkerhofI,  1003. 
V.  Harper,   156,  879. 
V.  Judges  Superior  Court,  273, 

740. 
V.  McKeown,  553,  624. 
V.  Rogers,  225,  734. 
Cumberland    Coal    &    Iron    Co.    v. 

Parish,   418. 
Cumberland  Island  Co.  v.  Bunkley, 

39,  43. 
Gumming  v.  Gumming,  589,  1209. 
V.  Ince,  439. 


TABLE 

References 

Cummings  t.  Hart,  556. 

V.  Jackson,   459. 

V.  Morris,  450. 

V.  Wire,  411. 
Cundiff  V.  Brokavv,  235. 
Cunningham    v.    Cassidy,    542,    570, 
574,  6Z7. 

V.  Davis,  409. 

V.  Freeborn,  985. 

V.  Hawkins,  1028,  1247,  1254. 

V.  Macon  &  B.  R.  Co.  624,  635. 

V.  McCready,  400,  475. 
Cupit  V.  Jackson,  769. 
Cupp  V.  Campbell,  335,  426,  454. 
Curling  v.  Townsend,  780,  801. 
Curran  v.  Houston,  43,  50,  54,  62. 
Currier  v.   Gale,   1251. 

V.  Teske,   683. 
Curry  v.  LaFon,  459. 

V.  Schmidt,  714. 
Curtis  V.  Ballagh,  1147,  1218. 

V.  Brownell,  397. 

V.  Goodenow,  360. 

V.  Gooding,  137,  146,  147. 

V.  Hazen,   7Z2). 

V.  Hitchcock,  150,  Z77,  378,  379. 

V.  Leavitt,  759,  788,  1174. 

V.  Mastin,  410. 

V.  Tyler,  229,  246,  253,  256,  481, 
742,  744,  750. 
Curtiss  V.  Bush.  245,  495. 

V.  Tripp,  227. 
Curyea  v.  Berry,  649. 
Gushing  v.  Ayer,  91. 
Cusuhman  v.  Leland,  11,  273. 
Cutler  V.  Clementson,  627. 

V.  Cremer,    1256. 
Cutter  V.  Jones,  147,  148. 

V.  Iowa  W.  Co.,  648. 
Cutting  V.  Lincoln,  842. 

V.  Tavares  O.  &  A.  R.  Co.,  909, 
1020. 
Cutts    V.    New    York    Manuf.    Co., 

106,  201,  349. 
Cutwilling   V.    Weiderman,  901. 


OF    CASES. 
are  to  Sections. 


1763 


D. 


Dabney  v.  Green,  1029. 

Daby  v.  Jacot,  979. 

Daggett    Hdw.    Co.    v.    Brcwnlec, 

944. 
Daggs  V.  Ewell,  80. 

V.  Wilson,  1177. 
Dahlberg  v.  Haeberle,  683. 
Dailey  v.  Abbott,  1072. 
Dake  v.  Miller,  271. 
Dakin  v.  Ins.  Co.,  153. 
Dakota  L.  &  T.  Co.  v.   Parmalee, 

302,  716. 
Dalby   v.    Pullen,   543. 
Dale  V.  McEvers,  516,  1185. 
Dalgardno  v.  Barthrop,  553,  652. 
Dalmer  v.  Dashwood,  812,  876. 
Dalter  v.  Hayter,   1220. 
Dalton  V.  Smith,  106.  201,  883. 
Daly  V.  Burchall,  138,  162,  379. 

V.  Maitland,  1003,  1006. 

V.  Reineldt,   456. 
Damon  v.  Deeves,  277,  1003,  1181. 

V.  Quinn,  1009. 
Dana  v.  Coombs,  395,  396. 

V.  Jones,    676. 
Danbury  v.  Robinson,  417,  988,  1001. 
Danforth  v.  Coleman,  225,  752. 

V.  Culver,  81. 

V.  Penny,  35. 

V.  Smith,   1212. 
Daniel  v.  Leitch,  611. 
Daniels  v.  Alvord,  1095. 

v.  Henderson,    147,    152,    155. 

V.  Hester,  526. 

v.  Moses,  234. 

V.  Pond,  490. 
Danley  v.  Rector.  457,  458. 
Darby  v.  Callaghan,  267. 
Darcy  v.  Blake,  767.  803. 
Darelius  v.  Davis,  1105. 
Darente  v.  Sullivan,  679. 
Darling  v.   Osborne,  434,  464,  500, 
863,  1114. 

v.  Wooster,  53,  344. 
Darlington  v.  Effey.  165. 
Darmstadt  v.  Manson,  7Z6. 


1764 


TABLE    OF    CASES. 
References  are  to  Sections. 


Darrow   v.    Scullin,   225,   227,   327, 

752. 
Darst  V.  Bates.  Ill,  392,  477,  478. 
Dart  V.   Bagley,  315. 

V.  Dart,  489. 

V.  McAdam,  404,  449. 
Darusmont  v.  Patton,  798. 
Darvin  v.  Hatfield,  721. 
Dashwood  v.  Blythway,  17,  7Z6. 
Dates  V.  Winstanley,  573,  72)^. 
Daton  V.  Daton,  1185. 
Dauchy  v.  Benner,  1035. 
Daugherty    v.    Deardorf,    136,    146, 
161. 

V.  McColgan,  1035. 
Davenport  v.  Bartlett,  498. 

V.  Sovil,  430,  432. 
Davenport  Plow  Co.  v.  Mewis,  228. 
Davidson  v.  Lawrence,  1247,  1252. 

V.  Weed,  730. 
Davies  v.  Dow,  468. 

V.  Westchester  Gas  Light  Co., 
447. 

v.  Hunt,    1077. 

V.  New  York  Concert  Co.,  89, 
32>7,  360. 
Davis'  Appeal,  244. 
Davis,  Matter  of,  611,  664. 
Davis,  In  re,  611,  652. 
Davis  V.  Alabama  &  F.  R.  Co.,  765. 

v.  Barr,  419. 

V.  Barton,   15  . 

V.  Bean,    1185. 

V.  Bechstein,  94,  148,  403,  418. 

V.  Christian,    1114. 

V.  Clark,    428. 

V.  Connecticut    Mut.    Life   Ins. 
Co.,  712. 

V.  Cox,   357. 

V.  Davis,  871. 

V.  Dodson,  43. 

V.  Dow.  468. 

V.  Dresback.  1145. 

V.  Duffie.  1234.  1243. 

V.  Duke  of  :\Iarlborough,  780. 

V.  Demning.    1036. 

V.  Evans.    147. 

V.  Flagg,  412. 


Davis  V.  Greenwood.  1114. 

V.  Hamilton,  212. 

V.  Hemingway,  127,  207. 

V.  Hess.  555,  638. 

V.  Holmes,   987. 

V.  Hopkins,  1152. 

V.  Hulett,   742,   743. 

V.  Huston,  268. 

V.  Indiana,  1251. 

V.  Jones,  259. 

V.  Keen,  943.  944. 

V.  McGee,  640. 

V.  Marlborough,   759,  763,  769, 
780. 

V.  Maynard,  392. 

V.  N.  Y.  Concert  Co.,  132. 

V.  O'Connell,  938. 

V.  Pierce,    1050. 

V.  Simon,   663. 

V.  Standish,  881. 

V.  Taylor,    Lowenstein    &    Co., 
155,  212. 

V.  Thomas,   466. 

V.  Wetherell,  1126,  1128. 

V.  Wynn,   1185. 
Davison  v.  DeFreest,  422.  839.  842. 

V.  Powell,  259. 

V.  The  Associates  of  the  Jersey 
Co.,  485. 
Dawley  v.  Brown,  389. 
Daws  V.  Congdon,  1180. 
Dawson  v.  Bauch,  914. 

V.  Danbury  Bank,  209,  214. 

V.  Egger,   1223. 

V.  Hoyle,  1252,  1253. 

V.  Overmeyer,    1106. 

V.  Vickory,   1155. 
Day   v.   Allaire,    1147. 

v.  Cole,  1202. 

V.  Mooney,    1050. 

v.  New  Lots,  843.  889. 

V.  Patterson,  146. 

v.  Perkins,  492. 

v.  Seely,  397. 

v.  Town  of  New  Lots.  843,  889. 

V.  Wetherby,  167. 
Dayton  v.  Dayton,  120,   1177,   1220. 

V.  Melick,  424,  428,  430. 


TABLE 

References 
Dazian  v.  Meyer,  771. 
Deaderick  v.  Smith,  553. 
Deadman  v.  Yantis,    1248. 
DeAgreda  v.  Mantel,  754,  755. 
Dean,  ex  parte,  1141. 
Dean  v.  Anderson,  331. 

V.  Applegarth,  62. 

V.  Empire   Mut.   Ins.   Co.,   508. 

V.  Nelson,  1111,  1251. 

V.  Phillips,  880. 

V.  Ridgeway,   43,    583. 
Dearborn  v.  Cross,  71,  466. 

V.  Nelson,  17. 
Dearlove  v.  Hatterman.  132. 
Deason  v.  Boyd,  395,  396. 
DeBerrera  v.  Frost,  792. 
DeButts  V.  Bacon,  409. 
Debell   v.   Foxworthy's   Heirs,   367. 
Debenture  Corp.  v.  Warren,  722. 
Debney  v.  Green,  1150. 
Decker  v.  Boice,  115,  204.  416,  923, 
949. 

V.  Caskey,  982,  985. 

V.  Patton,  968,  1135,  1220,  1236, 
1240. 

V.  Zeluflf.  716. 
Dedrick  v.  Barber,  203. 
DeForest  v.   Farley,   567.   571,  670, 

721.  831,  854. 
De  Grant  v.  DeGraham,  964. 
DeGreiff  v.  Wilson,  97. 
De  Groat  v.  Wilson,  540. 
DeHaven  v.  Landell,  683. 
Deisner   v.    Simpson,   294. 
Deitrich    x.    Lang,    357. 
Dela  V.  Stanwood,  1134. 
Delabere  v.  Norwood,   179,  211. 
Delacroix  v.  Bulkley.  71,  466. 
Delafield   v.   White,   840.   855.   860, 

892. 
Delahay   v.    Clement.   310. 

V.  McConnel,   713. 
Delaire  v.  Keenan,  331. 
Deland  v.   Mershon,   137,  228. 
Delaplaine  v.   Lewis,   133,   138,   179. 
De    La    Vergne    v.    Evertson,    991, 
1019. 


OF    CASES.  1765 

are  to  Sections. 

Delaware  &  H.  Canal  Co.  v.  Bon- 

nell,  459. 
Delaware  Bank  v.  Jarvis,  199. 
Delaware,  L.  &  W.  R.  Co.  v.  Scran- 
ton,  620,  627,  640. 
DeLeon  v.  Higuera,  146. 
DeLeonis  v.  Walsh,  1177,  1243. 
Delespine  v.  Campbell,  177. 
DeLorenza  v.  Dragone,  895. 
DeMey  v.  Defer,  622. 
DeMill  V.  Mofifatt,  1251. 
Deming  v.  Comings,  414,  476. 
Demarest  v.  Berry,  117,  ZZi. 

V.  Wynkoop,  75,  76,  83,  126,  913, 
916,  936,  949,  951,  985,  1247, 
1249,  1251,  1252. 
Demelt  v.  Leonard,  259. 
Deming  v.  New  York  Marble  Co., 

783. 
Dempsey  v.  Bush,  871. 

V.  McKenna,  403. 
Dempster  v.  West,  92,  623. 
Demuth  v.  Kennedy,  740. 

V.  Old   Town    Bank,   80. 
Den  V.  Wright,  85. 
Denby  v.  Mellgrew,  93.  115.  199. 
Dendy  v.  Waite,  322. 
Denegre  v.  Mushet,  843,  848. 
Denham  v.  Cornell,  839,  842,  871. 

V.  Snakey,  1050. 
Denison  v.  Gambill,  417. 

V.  League,  161,  203. 
Deny  v.  Moore,  1251. 

V.  Richards,  1251. 
Dennett  v.  Cadman,  1236. 
Dennis  v.  Moses,  540.  719,  1006. 

V.  Tomlinson,   1220. 
Denston  v.  Morris,  422,  495,  496. 
Denton  v.  Cole,  93,  345,  477. 

V.  Nanny.  155,  156,  835,  879, 
880,  1092.  1126.  1134,  1205, 
1210. 

V.  Noyes,  272. 

V.  Ontario      County      National 
Bank,  1105. 
Depew  V.  Depew,  621,  944. 

V.  Dewey,  620,  623,  649. 
DePierres  v.  Thorn,  331. 


1766 


TABLE    OF    CASES. 

References  are  to  Sections. 


Derby  Bank  v.  Landon,  964. 
DeRimer  v.  Cantillon,  711. 
Deroner  v.  Herbert,  620. 
Derrick  v.   Sams.  400. 
DeRuyter    v.    St.    Peter's    Church, 

843,  899,  904. 
Dervin  v.  Jennings,  1220. 
Des  Moines  Gas  Co.  v.  West,  77Z, 

792. 
DeSaussure  v.  Bollman,  182. 
Detillin  v.  Gale,  988.  995,  1001. 
Detroit  F.  &  M.  Ins.  Co.  v.  Renz, 

614.  660. 
Detroit  Nat.  Bank  v.  Blodgett.  436. 
Detroit    Savings    Bank    v.    Galvin, 

412. 
Deuster  v.  McCamus,  179,  602. 
Deutsch  V.  Haab,  953. 
Detwiler  v.   Hibbard,  446. 
Devaucene  v.  Devaucene,  725. 
Deveraux  v.  Fairbanks,  964. 
Devine  v.  Harkness,  640. 

V.  United  States  Mortgage  Co., 

594. 
Devlin  v.  Murphy,  250,  745. 
Devol   V.    Mcintosh,   67. 
Devonsher  v.   Xewenham,   15. 
Dewey  v.  Field,  456. 
V.  Ingersoll,  478. 
v.  VanDeusen,    120. 
Dewing  v.  Crueger,  89. 
DeWitt  v.  Van  Sickle,  417. 
Dewitt  V.  Brisbane,  412. 
DeWolf  v.  Johnson,  411,  459. 

v.  Murphy,    880. 
Dexter   v.   Arnold,    83,    1233,    1247, 

1252,   1256. 
v.  Shepard,  942. 
Dey  V.  Dunham,   1029. 
Deyermand  v.  Chamberlin,  244,  746, 

750. 
D'Eyncourt  v.  Gregory,  490. 
Dezell  V.   Odell.  457. 
Dial  V.  Gary,  120,  334,  753. 

V.  Reynolds,  213. 
Diamond  v.  Lawrence,  368,  484. 
Diamond  State  L.  Ass'c.  v.  Collins, 

661. 


Diar  v.   Glover,  679. 
Dias  V.  Bouchaud,  246. 

V.  Merle,   1234. 
Dick  V.   Mawry,  103. 
Dickason  v.  Williams,  1145. 
Dickerman  v.  Lust,  1077,  1085. 
Dickerson  v.  Board  of  Com.  of  Rip- 
ley Co.,  70. 

V.  Hayes,    1107,    1192. 

V.  Simmons,   1177. 

V.  Small,    544. 

V.  Uhil,   212. 

V.  Wenman,  419. 
Dickey  v.  Gibson,  726. 

V.  Thompson.  589,  591,  600. 
Dickinson  v.  Chicago,  B.  &  Q.  R. 
Co.,  80. 

V.  Chorn,  603. 

V.  Duckworth,     137,     179,     180, 
1123. 

V.  Hall,  499. 

v.  Mitchell,   508. 

V.  Smith,   825. 
Dillard  v.  Philson,  1251. 
Dillaye  v.  Parks,  389. 
Dillett  V.  Kemble,  56. 
Dillivan  v.  German  Sav.  Bank,  589. 
DiLorenzo  v.  Dragone,  890. 
Dills  V.  Jasper,  656,  662,  667. 
Dime  Savings  Bank  v.  Pettit,  979. 
Dime  Savings  Bank  of  Brooklyn  v. 

Crook,  451,  483. 
Dimond  v.  Dunn,  464. 
Dingeldein   v.   Third   Ave.   R.   Co., 

239,  244. 
Dings  v.  Parshall.  112,  1105. 
Diossy  V.  West,  271. 
Disbrow  v.  Gracia,  946. 
Dispeau    v.    First    Nat.    Bank,   436, 

1248. 
Dix  v.  Lohman,  619. 

v.  Palmer,  259. 

v.  Van  Wyck,  411. 
Dixfield  V.  Newton,  93. 
Dixon  V.  Buell,  Adm'r,  786. 

V.  Caldwell,  437. 


TABLE 

Rffereitces 

Dixon  V.  Cuyler.  120.  161,  165. 

V.  Hayes,  1249,  1252. 

V.  Merritt,  395. 

V.  Smith,  824,  825. 
Doan  V.  Holly,  741. 
Dobbin  v.  Hewett.  410. 
Dobbins  v.  National  Bank,  80. 

V.  Parker,  583. 
Doctor  V.  Smith,  210,  232,  487. 
Dodd  V.  Fisher.  741. 

V.  Neilson.    161.    164,   167. 
Dodds  V.  Lanaux,  856. 

V.  Snyder,  584,  603. 
Dodge  V.  Acker,  417. 

V.  Breme,  1149. 

V.  Brewer,  1146. 

V.  Crandall,  71,  466. 

V.  Kennedy.  1202. 

V.  Omaha  &  S.  W.  R.  Co.,  472, 
294.  683.  699. 

V.  Perkins,  53. 

V.  Wellman,  874. 

V.  Woolsey,  28. 
Dodson  V.  Lomax,  682. 
Doe  V.  DeVerbery,  1247. 

V.  Littlefield,  1220.  1223, 

V.  McLoskey,  115,  1033,  1234. 

V.  Vallejo,  432. 
Doe  ex  dem.   Brobst  v.  Roe,   1220, 

1247,  1253. 
Doe  ex  dem.  Doval's  Heirs  v.  Mc- 
Loskey, 1033. 
Doe    ex    dem.    Duroure    v.    Jones, 

1251. 
Doherty  v.  Doherty.  206. 
Dohm  V.  Haskin.  334,  944,  966.  973. 
Dolan  V.  Cook,  444. 

V.  Midland  Blast  Furnace  Co., 
713. 
Dold  V.  Haggerty,  909. 
Dollard  v.  Taylor,  654. 
Dolman  v.  Cook,  92,  410,  411,  440. 
Domestic    Building    Ass'c.    v.    Nel- 
son, 584. 
Donaho  v.  Bales,  640. 
Donley   v.    Hays.   584. 
Donnelly  v.  Rusch.  176.  178. 
Donnington  v.  Meeker,  409. 


OF    CASES.  1767 

are  to  Sections. 

Donovan  v.  Vanderniark.  983. 
Doody   V.    Pierce,   443,  473. 

V.  Higgins,  168. 
Doole.v  V.  Crist,  716. 

V.'  Potter,      1065,      1172.      1180, 
1212,  1235. 

V.  Villalonga,   165. 
Doolittle    V.    Lewis,    125,    126,    916, 

949. 
Dorwin  v.  Colt,  132. 
Dorkay  v.  Noble,  93. 
Dorn  V.  Bissell,  340. 
Dorr  V.  Fisher,  425. 

V.  Leach,  484. 
Dorsch  V.  Rosenthal],  340. 
Dorsey  v.  Thompson,  132,  207. 
Dorsheimer  v.  Rorback,  234. 
Doss  V.  Ditmars.   102,  495. 
Dosvvell  V.  Buchanan,  488. 
Doton  V.  Russell,  1060. 
Doty  V.  Baker.  881. 

V.  Berea  College,   535. 

V.  Norton.    1220. 
Dough  V.  McLoskey,  1134. 
Dougherty  v.  Kubat,  1129,  1191. 

V.  McColgan,  1047. 
Doughless  V.  Miller,  516. 
Doughty  V.  Hope.  912. 

V.  Hubbell,  540. 
Douglas  V.  Miller.  476. 
Douglass  V.  Bishop,  140,  147,  1065, 
1113,  1172. 

V.  Clark,  67. 

V.  Cline,  792. 

V.  Cross,  244. 

V.  Douglas,   880. 

V.  Durin,  92,    122. 

V.  Huston,  871. 

V.  Kline,   792. 

V.  Matting.  400. 

V.  Wells,  250.  743,  747. 

V.  Woodworth,  1123,  1213. 
Dove  V.  Dove.  725. 
Dovey's  Appeal,  365. 
Dow  v.  Chamberlin,  1029. 

V.  Jewell.  974. 

V.  Memphis  &  L.  R.  Co.,  806. 

V.  Moor,  468. 


1768  TABLE 

Refe7-cnccs 

Downard  v.  Groff,  177. 
Downer  v.  Fox,  183. 

V.  Wilson,  1105. 
Downes  v.  Grazebrock,  942. 
Downing  v.  Hartshorn,   1127. 

V.  Marshall,  980,  983,  998. 

V.  Palmateer,  310,  727,  977. 

V.  Rugar,  605. 
Downs  V.  Allen,  791. 

V.  Hopkins,   1233. 

V.  Sooy,  69. 
Dows  V.  Congdon,  643,  654. 

V.  Morewood,  473,  480. 
Doyle  V.  West,  892. 
Drake  v.  Ramsay,  395. 

V.  Rhodes,  917. 
Draper  v.  Jackson,  360. 

V.  Mann,  1065. 

V.  Stouvenel,  267. 
Draughdrill  v.  Sweeney,  1220. 
Drayton  v.  Chandler,  952. 

V.  Marshall,  74,  75,  79,  234. 
Drennan  v.  Huskey,  409. 
Dreyfuss  v.  Giles,  280. 
Drinan  v.  Nichols,  146. 
Drum  &  Ezekiel  v.  Bryan,  1135. 
Drummond  v.  Duke  of  St.  Albans, 

718. 
Drury  v.  Clark,   138,  242.  243.  262, 
341,  352,  744,  834. 

V.  Morse,  409,  1178. 

V.  Tremont  Imp.  Co.,  242. 
Dryden   v.   Stevens,  640. 
Dubois  V.   Bowles,   1185. 
Duck  V.  Wilson,  220. 
Ducker  v.   Belt,   182,  211. 
Duckwall  V.  Kisner,  534. 
Duckworth  v.  Trafford,  770. 
Dudgeon   v.    Smith,    1007. 
Dudley  v.  Bergen,  440. 

V.  Cadwell.    114. 

V.  Caldwell,  1060. 

V.  Congregation  of  Third  Or- 
der of   St.   Francis,  7,   12, 
294,  298. 
Duell  V.   Leslie,    1029. 
Duesterberg  v.   Swartzel,  683,  693. 
Duff,    In    re,   654. 


OF    CASES. 
are  to  Sections. 

Dufiield  v.  Elwes,  788. 
Duffy  V.   Casey,  788. 

V.  Smith,   1013. 
Dugan  V.  Trisler,  401. 
Duke  V.  Beeson,  1139,  1197. 

V.  Benson,    1191. 
Duke  of  Leeds  v.  Earl  of  Amherst, 

69. 
Dukes  V.   Turner,   1065,   1113. 
Dumell  V.   Terstegge,  340. 
Dumond  v.   Magee,  878. 
Duncan  v.  Dodd,  618,  624,  626,  640, 
651,  653. 

V.  Drury,   1050. 

V.  Helm,  410. 

V.  Louisville,   416. 

V.  Miller,   431. 

V.  Smith,   610. 
Dungan  v.  American  Life  Ins.  Co., 

116. 
Dunham  v.  Cudlipp,  401,  402. 

V.  Dey,  1029. 

V.  Doremus,  352. 

V.  Jackson,   1236. 

V.  Minard,  75,  79. 
Dunkley  v.  Van  Buren,  11,  17,  216, 

217,  218,  736,  737. 
Dunlap's  Adm'r  v.  Mueller,  446. 
Dunlap  V.  Mulry,  665,  666. 

V.  Wilson,  147,  148,  1112. 
Dunn   V.    Hunt,    1177. 

V.  Oettinger,  320,  942. 

V.  Raley,    211. 

V.  Seymour,  416. 

V.  Sharpe,    54. 

V.  Snell,   482. 
Dunning  v.   Leavitt,  245,  246,  247, 
252.  746. 

V.  McDoland,  323. 

V.  McDonald,  319. 

V.  Ocean   Nat.   Bank,  833.  837, 
840.  841.  858,  860,  879,  889. 
Dunsmore  v.  Savage,  1214. 
Dunton  v.  Sharpe,  62,  316,  718. 
Dupee  v.  Rose,  18. 
Durand  v.  Issacks,  146. 

V.  Lord,  367. 
Durden  v.  Whetstone,  556,  610. 


TABLE 

References 

Durham  v,  Craig,  67. 

V.  Stephenson,   1003. 
Durken  v.  Cleveland,  1256. 
Durland  v.  Durland,  347,  360. 

V.  McKibbin,  540. 
Durling  v.  Stillwell,  856. 
Durrant  v.  Essex  Co.,   1245. 

V.  Iowa    Co.,   368. 
Durrell  v.   Farwell,  938. 
Duryea  v.   Linsheimer,  463. 
Diisenbury  v.  Dusenbury,  820. 
Button  V.   Ives,  499. 

V.  Updike,    1209. 

V.  Worschauer,    1026. 
Duty   V.    Graham,    80. 
Duval  V.  McCloskey,  161. 

V.  Speed,   675. 

V.  The  P.  &  M.  Bank,  1033. 
Dwight's  Case,  640. 
Dwight   V.    Phillips,   374,   683,   921, 
927,  955,  956,  959. 

V.  Webster,  54,  475. 
Dwyer  v.  Garlough,  172. 

V.  Rohan,   320. 
Dye  V.   Mann,  361. 
Dyer    v.    Cranston    Prints    Works 
Co.,  683. 

V.  Hanford,    1145. 

V.  Kopper,  723,  725. 

V.  Leach,    315. 

V.  Lincoln.  409. 

V.  Shurtleff,  942. 
Dyett  V.  Pendleton,  498. 
Dykes  v.  McClung,  259. 


E. 


Eades  v.  Harris,  172. 
Eadie  v.  Slimmon,  435,  439. 
Eager  v.  Commonwealth,  1251. 
Eagle  Fire  Ins.  Co.  v.  Cammet,  170, 
171. 

V.  Flanagan,  834. 

V.  Lent,  209,  213,  396,  482.  484. 

V.  Pell,  516,  517,  753,  1020,  1185. 
Eagle  Iron  Works,  In  re,  776,  778, 

783,  785.  786.  788. 
Eagleson  v.  Shotwell,  1178. 


OF   CASES.  1769 

are  to  Sections. 

Eagleston  v.  Son,  259. 

Eakin  v.  Shultz,  744,  746. 

Eakle  v.   Hagan,   476. 

Eardley  v.  Knight,  1023. 

Earl  v.  David,  217,  274. 

Earle  v.  Barnard,  152,  155. 

Earnest  v.  Hoskins,  418. 

East    India    Co.    v.    Atkyns,    1036, 

1038,    1046. 
Eastabrook  v.  Moulton,  327. 
Easterbrook  v.  Easterbrook,  262. 
Eastern  Banking  Co.  v.  Seeley,  63, 

540. 
Eastman  v.  Batchelder,   1077,   112L 

V.  Fiefield,  344. 

V.  Foster,  80. 

V.  Littlefield,    1248. 

V.  Thayer,    1220. 
Easton  v.   Pickersgill,  831. 

v.  Woodbury,    996. 
Eastwood  v.  Worrall,  39. 

V.  Worrell,   466. 
Eaton   V.   Bender,    1100. 

V.  Nason,   154,  233. 

V.  North,  1121. 

V.  Simonds,   155,   1126. 

V.  Trnesdall,    53. 

V.  Whiting,   913. 
Eaves  v.  Estes,  490. 
Eberhart  v.  Gilchrist.  640. 
Ebert  v.  Hanneman,  676,  721.. 
Eby  V.  Ryan,  70. 
Eckerson  v.  McCulloh,  1157. 

v.  Vollmer,    157,    267. 
Ecklund  v.  Willis,  540,  541. 
Eddy  V.  Campbell,  79. 

v.     Graves,  466. 

V.  Smith,  857,  873. 
Edgar  v.  Beck,  43. 

V.  Golden,  495. 
Edgaro  v.  Beck,  56. 
Edgarton   v.   Byrd,   1226. 

V.  Young,    1050. 
Edgell  v.  Hagens,  426. 

V.  Haywood,    796. 
Edgerton  v.  McRea,   1220.. 

V.  Young,  475,  964. 
Edie  V.  Applegate,  793. 


1770  TABLE 

References 

Edinburgh    American    Land    Mort- 
gage  Company  v.   Peoples, 
401. 
Edmonds  v.  Crenshaw,  374. 
Edmondson  v.  Welsh,  610,  625. 
Edmundson  v.  Wragg,  1141. 
Edrington  v.  Harper,  1029. 
Edsdell  V.  Buchanan,  1256. 
Edson  V.  Dillaye,  401. 

V.  Girvan,  354. 
Edwards  v.   Bodine,  422,  495,  496, 
946,  947. 

V.  Cunliffe,   977. 

V.  Dargan,  741. 

V.  Farmers'  Fire  Ins.  Co.,  85. 

V.  Grand,  1006. 

V.  Johnson,  720. 

V.  McLeay,  421. 

V.  Roys,  1227. 

V.  Sams,  871. 

V.  Sanders,  234,  610. 

V.  Thorn,  855. 

V.  Thompson,  468. 

V.  Varick,  488. 

V.  Woodbury,  808. 

V.  Wray,   814,    1247. 
Egan  V.  Buellesbach,  665. 
Eggleston  v.  Hadfield.  719. 

V.  Morrison,    735. 
Egleston  v.  Knickerbacker,  71. 
Ehleringer  v.  Moriarity,  678. 
Eiceman  v.  Finch,   1065. 
Eichbredt  v.  Angerman.  355. 
Eidlitz  V.  Doctor,  647. 

V.  Lancaster,   762. 
Eiseman  v.  Gallagher,  1095. 
Ekblad  v.  Hanson.  662. 
Elder  v.  Elder,  423. 

V.  Hamilton,  692. 
Eldridge  v.  Eldridge,  155. 

V.  Stenger,  372,  376. 

V.  Strenz,   982. 

V.  Wesierski,   545. 
Eldriedge    v.    Hoefer,    1181,    1206, 

1220. 
Eleventh    Ward    Savings    Bank    v. 
Hay,  204,  334,  866. 


OF    CASES. 

are  to  Sections. 

Elgutter  V.  Northwestern  Mut.  Life 

Ins.  Co.,  550,  567. 
Elias  V.  Vardago,  486. 
Elkin   V.   Rives,    1013. 
Elkins  V.  Edwards,  74,  80. 
Ellenbogen  v.  Griffey,  540,  610. 
Elliot  V.  Patton,   1233. 
Elliott  V.  Pell,  353. 

V.  Wood,  913,  942,  947. 
Ellis  V.   Allen,   686. 

V.  Basher,  476. 

V.  Fairbanks.  584. 

V.  Guavas,  120. 

V.  Johnson,  743,  744. 

V.  Kenyon,  154. 

V.  Leek,  968. 

V.  Messervie,  416,  435. 

V.  Sisson,  119,  417. 

V.  Southwell,  863. 
Ellison  V.  Pecare,  595. 
Ells  V.  Tousley,  872. 
Ellsworth  V.  Campbell,  528. 

V.  Lockwood,  113,  570,  573,  574. 
575,  577,  939,  940,  944,  1190. 
Ellwood  V.  Wolcott,  58. 
Elmendorf  v.   Lockwood.   156,  840, 
858,  879. 

V.  Taylor,   1150,   1247,    1252. 
Elmire  Mechanics'  Soc.  v.   Stanch- 
field,  793. 
Elrod  V.  Smith,  1149,  1248. 
Eisner  v.  Williams,  417,  443. 
Els  worth    V.    Lockwood,   409. 

V.  Woolsey,    850. 
Elwell  V.  Robbins,   1017. 
Ely  V.  Collins,  885. 

V.  Ely,  221,  310,  392. 

V.  Mathews,   667,  676. 

V.  McKnight,  244,  417,  418. 

V.  Parkhurst,    1174. 

V.  Perrine,  596. 
Embery  v.  Bergaminne,   1147. 
Emeric  v.  Tams,  335,  357.  358. 
Emerick  v.  Miller,  725.  728. 
Emerson  v.  Atkinson,  1110. 
Emery  v.  Grocock,  676. 

v.  Titchout,  473. 


TABLE    OF    CASES. 

References  are  to  Sections. 


\77\ 


Emigrant  Industrial   Savings  Bank 
V.  Clute,   484. 
V.  Goldman.   185,  209,  211,  332, 
351,  484.  487,  682,  683,  843, 
862,  886. 
Emley  v.  Mount,  447,  481,  743. 
Emmons  v.  Henderer,  302. 
V.  Keller,  810. 

V.  Van  Zee,  932,   1135,   1248. 
V.  Vauzle,  1237. 
Emory  v.  Boyer,  540,  541. 

V.  Keighan,  77,  80,  114,  468. 
Empire  City  Sav.  Bank  v.   Silleck, 

667. 
Empire  State  Bank,  In  re,  751. 
Empire  State  Surety  Co.  v.  Ballou, 

29,  36. 
Empringham  v.  Short,  824. 
Endel  v.  Leibrock,  1244. 
Engel  V.  Ladewig,  1120. 
Engle  V.  Haines,  599. 

V.  Underbill,  11,  273. 
Englehart-Hitcbcock    Co.    v.    Cen- 
tral Invst.  Co..  693,  716. 
English  V.  Carney,  62. 
V.  English,    351. 
V.  Register,    115. 
English  American  Land   Mortgage 
Co.,     Limited    v.     Peoples, 
401. 
Englund  v.  Lewis,  220,  225,  734,  755. 
Ennis  v.  Wolff,  213. 
Enor  V.  Thompson,  1158. 
Enos  V.  Sutherland,  1029,  1078. 
Ensign  v.  Batterson,  1189,  1205. 

V.  Colburn,   302,  758,   760.   799. 
Ensworth   v.   Lambert,  390. 
Equitable   Guarantee   &   Trust   Co. 

V.    Knowies,    714. 
Equitable  Land  Co.  v.  Allen,  1123. 
Equitable  Life  Association  v.  Cuy- 

ler,   447. 
Equitable     Life     Assurance     Soc, 
The,  V.  Bostwick,  144,  177, 
242,  743.  748. 
V.  Hughes,  1021. 


Equitable  Life  Ins.  Co.  v.  Gleason, 
30. 

V.  Stevens,   217,  221,  274,   72,Z. 
Equitable  Life  Insurance  Societies 
V.  Stearns,   11. 

V.  Stevens,  273. 

V.  Toplitz,  705. 
Equitable  Mort.  Co.  v.  Gray.  704. 
Equitable  Sav.  &  L.  Ass'c.  v.  Hew- 
itt,  360. 
Equitable  Securities  Co.  v.  Talbert, 

417,  418. 
Equitable  Trust  Co.  v.  Fisher,  1214. 

V.  Sharpe,  640. 

V.  Thorpe,  618,  628. 
Ercanbrack  v.  Rich,  345,  347. 
Erickson  v.  Rafferty,  148. 

V.  Thelin,  1177. 
Erie    Co.    Savings    Bank   v.    Roop, 
508,   592,   883. 

V.  Schuster,  196. 
Erlinger  v.  Bui,  1209. 
Erskine  v.   North,   1256. 

V.  Townsend,  46,  1029. 
Erwin  v.  Blanks,  1108. 

V.  Ferguson,  98,  161,  165. 

V.  Vint,   1147. 
Escher  v.  Simmons,  579. 
Eslava  v.  Crampton,  801. 

v.  Eslava,  20. 

v.  LePretre,    174,    1134. 

v.  New    York    Nat.    B.    &    L. 
Ass'c,  11. 
Esmond    v.    Vanbenschoten,    466. 
Essley  v.  Sloan,  1234. 
Estabrook  v.  Moulton,  54,  56. 
Estate  of   Fenn,  721. 
Etheridge  v.  Vernoy,  120,  155,  159, 

198. 
Ettlinger  v.  Persian  Rug  &  Carpet 

Co.,    132. 
Eubanks  v.  Becton,  1061. 
Evans  v.  American  Strawboard  Co., 
407. 

V.  Atkins,  1236. 

V.  Bicknell,  456,  1061,   1246. 

V.  Bushnell,   552. 


1772  TABLE 

References 

Evans   v.   Coventry,   760,   763,   768, 
774,  785,   797. 

V.  Dravo,  420. 

V.  Ellis,  436. 

V.  Huffman,    79. 

V.  Jones,   1127. 

V.  Kahr,    1191. 

v.  Mansure  &  Tebbetts  Imple- 
ment Co.,  1003. 

V.  Maury,  640. 

V.  McLucas,  211. 

V.  Pence,  398,  403. 

V.  Pike,    1213. 

V.  Weinstein,  263. 

v.  Wells,  71. 
Evansville  Gas  Light  Co.  v.  State, 

392,  584,  592. 
Evansville    People's    Sav.    Bank   v. 

Finney,  102. 
Everett  v.  Belding,  780. 

v.  Gately,  468. 

v.  Reynolds,  637. 
Everling  v.  Holcomb,  13. 
Everson  v.  Johnson,  547. 
Evertson  v.   Booth,  601. 
Ewart  v.  Walling,  1029. 
Ewer  v.  Coffin,  35. 
Ewing,  In  re,  640. 
Ewing  V.  Ainsworth,  180,  184. 

v.  Blight,    767. 
Exchange   Fire    Ins.    Co.   v.   Early, 

507,  511.  529. 
Ex  parte  Allen,  906. 

Boyce,  683,  695. 

Crisp,   1124. 

Dean,    1141. 

Fletcher,  782. 

Hanson,  440,  444. 

Merrian,    584. 

]\Iinor,  680. 

Partington.  626. 

Reynal.  490. 
Eyster  v.  Gaff,  150,  172,  173. 
Ezell  V.  Watson,  1149,  1233. 


Fackler  v.  Worth,  726. 


OF    CASES. 
are  to  Sections. 

Faesi  v.  Goetz,  220,  741. 

F.   G.   Oxley   Stove   Co.   v.   Butler 
Co.,  623. 

Fagan  v.  People's  Sav.  &  L.  Assoc 
843,  850,  853,  932. 

Fairchild  v.   Holly,  473. 
v.  Lynch,  244,  250,  745. 

Fairfax  v.  Muse,  639. 

Fairfield  v.  Weston,  778. 

Fairman  v.  Farmer,  221. 

Faison  v.  Hicks,  1002. 

Fales  v.  Mayberry,  417. 

Falis  v.  Conway  Ins.  Co.,  1047. 

Falkner  v.  Bolton,  1237. 
v.  Cody,    1038. 
V.  Printing  Co.,  1002. 

Fall  V.  Elkins,  999. 
V.  Evans,   978. 

Fallon  V.  Butler,  234. 

Fanning  v.  Murphy,  242. 

Fannyery  v.  Ransom,  649. 

Farley  v.  Blood,  985. 
v.  Farley,  779. 
.  Farlow  v.  Weildon,  626. 

Farmers',    etc..    Bank    v.    Bronson, 
1216. 

Farmers     &     Mechanics'     Bank    v. 
Kimmel,  411. 
v.  Wilson,  81. 

Farmers    &    Mechanics'    Bank    of 
Genesee  v.  Joslyn,  409. 

Farmers'  &  Millers'  Bank  of  Mil- 
waukee v.  Luther,  190,  567. 

Farmers'  &  Traders'  Nat.  Bank  v. 
Gates,  482. 

Farmers'   Bank   of    Grass    Lake   v. 
Quick,  640. 

Farmers'     Bank    of     Maryland    v. 
Clarke,  606. 

Farmers'    Bank   of    Mooresville    v. 
Buttetfield,  403. 

Farmers'  Bank  of  Phillipi  v.  Wood- 
ford, 65. 

Farmers'    Loan    &    Trust    Co.    v. 
Bankers'   &    M.    Telegraph 
Co.,  3,  21,  Z2,,  561,  569,  619, 
681. 
V.  Chicago  &  A.  R.  Co.,  702. 


TABLE    OF    CASES. 
References  are  to  Sections. 
Farmer's  Loan  &  Trust  Co.  v.  Chi-       Faulks  v.  Dimock,  92. 
cago  &  N.  P.  R.  Co..  129, 
394. 
V.  Denver,  516. 
V.  Dickson,  371. 
V.  Grape  Creek   Coal   Co.,  72)Z. 
V.  Maltby,  584. 

Works     Co., 


1773 


w. 


V.  Meridian 
798. 

V.  Millard,   1019. 

V.  Newman,  864. 

V.  New  York,  &  N.  R.  Co.,  129, 
420. 

V.  Nova    Scotia    Cent.    R.    Co., 
43,  49. 

V.  Oregon  &  W.  T.  R.  Co.,  843. 

V.  Reid,  392. 

V.  San   Diego    Street    Car   Co., 
482. 

V.  Seymour,  385,  834. 

V.  Vicksburg  &  M.  R.  Co.,  843. 

V.  Walworth,    109. 

V.  Winona  &  S.  W.  R.  Co.,  292. 
Farmers'  National  Bank  of  Salem 

V.  Fletcher,  416. 
Farmers  Savings  Bank  v.  Sabotka, 

584. 
Farnsworth  v.  Boston,  294. 

V.  Hoover,  43.  61.  553,  660,  661. 
Farnum  v.  Metcalf,  1100,  1233. 
Farquhar  v.   Morris,  53. 
Farr  v.    Dudley,   1077. 

v.  Lachman,  620. 

V.  Sumner,   395. 
Farrar  v.  Chauffetete,  715. 

V.  Stackpole,  490. 
Farrell  v.  Bean,  360. 

V.  Palmer,   81. 

V.  Parlier,  967,  976,  1115. 
Farris  v.  Briscoe,  417. 
Farwell  v.  Cotting,  1126. 

V.  Murphy,     179,     1105, 

1180. 

Fash  v.  Ravesies,  367. 

Fassett  v.  Alulock,  584. 

Faulkner  v.  Cody,   11. 

V.  Daniel,  812.   1092. 

V.  Overturf,  340. 


1111, 


Faure  v.    Martin,  423. 

v.  Winans,    516,    517,   518,    753, 
1020,   1185. 
Fausel  v.  Schabel,  69. 
Favorite  v.   Deardorf,  785,  788. 
Faxton  v.  Faxton,  69. 
Fay  V.  Burditt,  397. 

v.  Cheney,   120. 

V.  Lovejoy,   409. 

V.  Stubenrauch,  731. 

v.  Valentine,  1061,  1246. 
Faysoux  v.  Prather,  76. 
Fearn  v.   Shirley,   1251. 

V.  Ward,  280. 
Fearns  v.  Young,  1012. 
Fee   v.    Sivingly,   967. 

v.  Swingly,  967. 
Feek  v.  Brewer,  573. 
Felch  v.  Taylor,  1145. 
Felder  v.  Murphy,  146,  182. 
Feldman  v.  Beier,  473. 

v.  Rockford  Co.,  467. 
Feigner's  Administrators   v.   Sling- 
luff,    1012. 
Fell  V.  Brown,  137. 
Fellows  V.  Fellows,  609. 

v.  Oilman,   63. 

V.  Prentiss,  70. 
Fender  v.  Robinson,   1003. 
Fenn,  Estate  of,  721. 
Fenno  v.  Sayre,  411. 
Fenton  v.  Bell,  944. 

V.  Ooundry,    49. 

V.  Hughes,    198. 

V.  Lord,   242,    1145. 
Fenwick  v.  Macey,  7Z,  1256. 
Fergus   v.  Woodworth,  680,   721. 
Ferguson's  Estate,  Re,  856. 
Ferguson  v.  Boyd,  1037. 

V.  Crawford,  271. 

V.  Dickinson,  797,  798. 

V.  Ferguson,    108,   580.   914. 

V.  Kimball,   508.   584,   592,  914, 
932. 

V.  Soden,   409. 

V.  Wagner,   1177. 

V.  Wooley,   1014.   1016. 


1774  TABLE 

References 

Ferlinghuysen  v.  Colden,  792. 
Ferris  v.   Crawford,    112,  242,  459, 
743. 

V.  Ferris,  54,  56,  58,  64,  475. 

V.  Spooner,  49. 
Fichtenkann  v.  Games,  759. 
Fidelity   &   Deposit   Co.   v.    Oliver, 

1006. 
Fidelity  Ins.  T.  &  S.  Dep.   Co.   v. 
Roanoke  Iron  Co.,  686,  705. 
Fidelity   Sav.   Ass'c  v.    Shea,    1003, 

1005. 
Fidelity  T.  &  S.  Vault  Co.  v.  Carr, 
416. 

V.  Mobile  St.  R.  Co.,  640. 
Fiedler  v.  Darrin,  11. 
Field  V.  Anderson,  284. 

V.  Hawxhurst,    333,    843,    857, 
899. 

V.  Helms,  1036,  1038. 

V.  Holland,   473. 

V.  Jones,   759,   787,   788,   825. 

V.  Maghee,   119,  390. 

V.  Park,  1141. 

V.  Thistle,  146,  199. 

V.  Wilson,    75. 
Fielder  v.  Varner,  411. 
Fields  V.  Danenhower,  1177. 

V.  Drennen,  54. 
Fiend  v.   Park,   1141. 
Figart  v.  Halderman,  246. 
Filer  v.  New  York  Cent.  R.  R.  Co., 

267. 
Finch  V.  Calvert,  1021. 

V.  Earl  of  Winchelsea,  874. 

V.  Finch,   1192. 

V.  Houghton,  798,  799. 
Findley  v.   Findley,  627. 
Fine  v.  King,  478. 
Finger  v.  McGaughey,  161,  727. 
Fink  V.  Murphy,  1065,  1105. 
Finlay  v.  Longe,  1070. 
Finlayson  v.  Lipscomb,  468. 

V.  Peterson,    704. 
Finley   v.   Bank   of   United    States, 

211. 
Finlon  v.  Clark,  973. 
Finnegan  v.  Manchester,  36. 


OF    CASES. 
are  to  Sections. 

Fireman's    Ins.    Co.    v.    Wilkinson, 

308. 
Firestone  v.  Klick,  346,  567. 

V.  State,  843,  866. 
Firmstone  v.  DeCamp,  423. 
First   International    Bank   v.    Peck, 

63. 
First    Methodist    Episcopal   Church 

V.  Fadden,  1008. 
First  Nat.  Bank  v.  Citizens'  Bank, 
43. 
V.  Citizens'   State  Bank,  39. 
V.  Clark,    1178. 
V.  Davis,  403. 
V.  Elliott,  1191,  1234. 
V.  Flath,  416. 
V.  Gage,  762. 
V.  Grosshans,  421. 
V.  Hammond,  458. 
V.  111.  Steel  Co.,  719. 
V.  Radford  Trust  Co.,  132. 
V.  Renn,  446. 
V.  Salem    Capital    Flour    Mills 

Co.,  211. 
V.  Tamble,    1010. 
First   Nat.   Bank  of   Butte  v.   Bell 
Silver    &    Copper    Mining 
Co.,  3,  11,  544,  547. 
First  National  Bank  of  Dubuque  v. 

Carpenter,  254. 
First  National  Bank  of  Jamestown 

V.  Scofield,  19. 
First  National   Bank  of   Meadville 
V.    Fourth    Nat.    Bank    of 
New  York,  983. 
First  National  Bank  of  Nevada  v. 

Bryan,   408,  436,  438. 
First  National  Bank  of  Parsons  v. 

Wentworth,  430,  432. 
First   National    Bank  of    Salem   v. 
Salem  Capital  Flour  Mills 
Co.,  211. 
First  National  Bank  of  Trenton  v. 

Gay,  1006. 
First  National  Bank  of  Waterloo  v. 

Elmore,  305. 
First  State  Bank  v.  Cox,  584. 


Fischer  v.  Hess,  81. 

V.  Simon,  921. 
Fish  V.  DeWolf,  412. 

V.  Emerson,  871. 

V.  Hayward,  71,  466. 
Fishburne  v.  Smith,  556,  624. 
Fishell  V.  Bell,  423. 
Fisher  v.  Bishop,  436. 

V.  Bull,   440. 

V.  Conant,  464. 

V.  Coyles,  213. 

V.  Hersey,  654. 

V.  Mayor,  80. 

V.  Meister,  92,  405. 

V.  Milmine,  65. 

V.  Mossman,  80. 

V.  Otis,   408. 

V.  Prosser,  498. 

V.  Tallman,  1087. 

V.  White,  743. 
Fishwick  v.  Lowe,  170. 

V.  Tolman,  239,  748. 
Fitch  V.  Coit,  964. 

V.  Miller,  1140,  1248. 

V.  Wetherbee,  1087. 
Fithian  v.  Corwin,  201. 

V.  Monks,   218,   220,   242. 
Fitts  V.  Hoitt,  668. 
Fitzgerald  v.  Barker,  242,  246,  743. 

V.  Blake,  367,  370.  379. 

V.  Fernandez,    155. 

V.  Kelso,  640. 

V.  Quann,  158. 
Fitzhugh  V.  Anderson,  Id,  1251. 

V.  McPherson,  117. 
Fitzpatrick  v.  Sweeney,  676,  710. 
Fitzsimons  v.  Drought,  381. 

V.  Harrington,  158. 
Flack  V.  Braman,  161,  1247. 
Flagg  V.  Geltmacher,  252. 

V.  Johnston,  123. 

V.  Mason,  710. 

V.  Munger,  133,  244,  481. 

V.  Ruden,  76. 

V.  Thurber,  243. 
Flanagan  v.  Westcott,  392. 
Flanagan   Estate   v.   Great   Central 
Land  Co.,  966. 


TABLE    OF    CASES.  1775 

References  are  to  Sections. 

Flanders  v.  Hall,  1135,  1225. 

V.  O'Brien,  432. 
Fleischman  v.  Tilt,  146. 
Fleishauer    v.    Doellner,    225,    250, 

1185. 
Fleitas  v.  IMeraux,  146. 
Fleming  v.  Burnham,  676. 

V.  Franing,  58. 

V.  Gilbert,  71,  466. 

V.  Griswold,  1251. 

V.  Holt,  127. 

V.  Kerkendall,  220. 

V.  Perry.  476. 

V.  Reed,  598. 

V.  Sitton.  217,  73Z,  72,7,  966. 
Flentham  v.  Steward,  738. 
Fletcher,  Ex  parte,  782. 

V.  Gary,  177. 

V.  Chamberlin,  964. 

V.  Chase,  1172. 

V.  Dennison,  61. 

V.  Herring,  498. 

V.  Holmes,    156,    161,   227,   755, 
1126. 

V.  Krupp,  762,  772. 

V.  ^IcFarlane,  1145. 
Flint  V.  Winter  Harbor  Land  Co., 

743. 
Flook  V.  Jones,  2)77. 
Florence  Land  Min.  &  Mfg.  Co.  v. 

Warren,  1087. 
Floyd  V.  Clark,  871. 

V.  Dearborn,  342. 
Floyer  v.  Lavington,  1036,  1038. 
Fliess  V.  Buckley,  58,  180,  234,  236, 
840.  857,  858.  860,  867,  871, 
879,  890,  892,  901. 
Flint  V.  George,  678. 

V.  Howard,   1105. 

V.  Jones,  427. 
Flower  v.  Bolingbroke,  72. 

V.  Ehvood,  102. 
Flucher  v.  Hiatt,  1135. 
Fluck  V.  Hager,  253,  254. 
Flynn  v.  McKeon,  466. 

V.  Mudd,  54.  70,  71. 


1776 


TABLE    OF    CASES, 

References  are  to  Sections. 


Flynn  v.  Powers,  233,  257,  394,  395, 
396. 

V.  Wilkinson,  623. 
Flynt  V.  Howard,   1105. 
Foden  v.  Sharp,  49,  344. 
Fogal  V.  Pirro,  148,  160,  1065,  1172, 

1176,  1189. 
FoUansbee  v.  Johnson,  242. 

V.  N.   W.    Mut.   Life   Ins.    Co., 
1006. 
Fond  du  Lac  Harrow  Co.  v.  Ras- 
kins, 203,  228,  742. 
Foot  V.  Ketchum,  418,  442. 
Foote  V.  Burnet,  498. 

V.  Gibbs,  1245. 

V.  Lathrop,  157,  267. 

V.  Sprague,  221,  227.  355,  1003. 
Forbes  v.  Moffatt.  610,  1050. 
Ford  V.  Cobb,  490,  491,  715. 

V.  Davis,  1192. 

V.  Nesbitt,  315,  917. 

V.  Olden,  1048. 

V.  Smith,  345,  447. 

V.  Wilson,   1150,  1247,   1252. 
Foreman  v.  Foreman,  58,  842. 
Forest  Lake  Cemetery  v.  Baker,  660. 
Forgy  V.  Merryman,  748. 
Forman  v.  Bulson,  1243. 

V.  Hunt,  533,  626,  627,  637. 

V.  Manley,  741,  743. 

V.  Marsh,  842. 
Ferrer  v.  Kloke,  209. 
Forrest  v.  Forrest,  510. 

V.  Mayor  of  N.  Y.  344. 
Forstall's  Succession,  696. 
Forsyth  v.  Freer,  Illges  &  Co.,  404. 
Fort  V.  Burch,  659,  680,  708. 

V.  Roush,  652. 
Fortier  v.  Darst,  417. 
Fosdick  V.  Grofif,  401. 
Foshay  v.  Ferguson,  439. 
Foster  v.  Bowles,  352. 

V.  Briggs,   1061,  1246. 

V.  Conger,  267. 

V.  Deacon,  119,  150. 

V.  Hickox,   156. 

V.  Honan,  1003. 

V.  Johnson,  209. 


Foster   v.   McKinley-Lanning  Loan 
&  Trust  Co.,  552. 

V.  McKinnon,  400. 

V.  Paine,  478. 

V.  Rhodes,  795,  823. 

V.  Townshend,    785,    787,    824, 
825. 

V.  Udell,  528. 

V.  Union    Nat.    Bank    of    Ray- 
way,  595. 
Fouche  V.  Swain,  1220,  1222. 
Foulk  V.  Brown,  76. 
Fountain  v.  Walther,  808. 
Fouts  V.  Mann,  447. 
Foval  V.  Benton,  213,  214. 
Fowler  v.  Barksdale,  601. 

V.  Brooks,  70,  466. 

V.  Johnson,  327,  579. 

V.  Kruntz,  640. 

V.  Lewis,  917. 

V.  Lilly,  683. 

V.  Taylor,  316,  553,  627. 

V.  Wood,  454. 
Fox  V.  Gray,  43. 

V.  Lipe,  409. 

V.  Aloyer,  389. 

V.  Pratt,  156,  879. 

V.  Reeder,  1256. 

V.  Wharton,  3,  54. 
Foxwell  V.  Slaughter,  700. 
Foy  V.  Armstrong,  459. 

V.  Cheney,  1234. 
Frain  v.  Burgett,  1133. 
Frame  v.  Kenny,  73. 
Francis  v.  Castleman,  53. 

V.  Church,    620,    640.    644,   646, 
651. 

V.  Parks,  1135. 

V.  Porter,  67,  361. 

V.  Ross,  267. 

V.  Sheats,  1098. 
Frank  v.  Brunnemann,  302. 

V.  Davis,  733.  738. 

V.  Harrington,  490. 
Franklin  v.  Beegle.  389. 

V.  Brownlow,  667. 

V.  DiClemente,  509. 

V.  Gorham,  1064,  1172. 


TABLE 
References 

Franklin   v.  Talmadge,   369. 

V.  Van  Cott,  895,  896,  903,  906, 
907. 
Franklyn  v.  Fern,  172. 

V.  Hayward.  92.   109,   179,    180, 
966,  969. 
Fraser  v.  Bean,  72,  136,  280. 

V.  Prather,  1189. 

V.  Seeley,  545. 
Frazier  v.  Swimm,  618. 
Freak  v.  Hcarsey.  120. 
Frecking  v.  Rolland,  232. 
Frederick  v.  Wheelock,  553,  607. 
Fredman's  Savings  &  Trust  Co.  v. 
Dodge,  220. 

V.  Earle,  58. 
Freeland  v.  Freeland,  172,  382,  401. 
Freedman  v.  Safran,  369. 
Freeman  v.  Auld,  245,  409,  459, 

V.  Barber,  267. 

V.  Howe,  765,  1232. 

V.  Munns,  652. 

V.  Paul,  1050. 

V.  Scofield,  98,  99,  127. 

V.  Schroeder,  856,  864,  865. 
Frees  v.  Ford,  21. 
Freickencht    v.    Meyer,    1054,    1169, 

1231. 
Frelinghuysen  v.   Colden,  482.  723, 

725,  727,  762,  763,  819. 
Fremoult  v.  Dedire,  874. 
French  v.  Blanchard,  451. 

V.  Frazier,  81. 

V.  French,  755. 

V.  Newham,  1092. 

V.  Poole,  58. 

V.  Row,  60. 
Frenche  v.  McConnell,  447,  498. 
Freund  v.  Washburn,  268. 
Fridley  v.  Somerville,  1029. 
Friedley  v.  Hamilton,  1029. 
Fries  v.  Boisselet,  81. 
Frink  v.  Branch,  338,  339. 

V.  Le  Roy.  1249. 

V.  Murphy,  1074. 

V,  Neal,  43,  127,  132. 

V.  Thompson.  958,  961. 
Mortg.  Vol.  n.— 112. 


OF    CASES. 
are  to  Sections. 


1777 


Frisbee  v.  Hoffnagle,  499. 
Frisbie  v.  Fogarty,  681. 
Frisby  v.  Ballance,  982,  985. 

V.  Bateman,  792. 
Frische  v.  Kramer,  683. 

V.  Kramer's  Lessee,  1113,  1123. 
Froidevaux  v.  Jordon,  966. 
Frost  V.  Beekman,  398,  517. 

V.  Davis,  1205. 

V.  Frost,  140,  141,  307,  578. 

V.  Koon,  209,  213,  332,  341.  351. 
353,  362,  484.  487. 

V.  Peacock,  879.  880,  884.  1126. 

V.  Yonkers  Savings  Bank.  211, 
1105,  1177. 
Fry  v.  Bennett,  623,  649,  779. 

V.  Graham,  1013. 

v.  Old  Dominion  Bldg.  &  Loan 
Ass'c,  938. 

V.  Porter,  1038,  1042. 

V.  Street,  640. 
Fryatt  v.  Sullivan  Co.,  302. 
Frye  v.  Hubbell,  476. 
Fryer  v.   Rockfeller,  345,  667,  670, 

682. 
Fullam  v.  Stearns,  492. 
Fuller  v.  Brown,  620,  623,  996. 

V.  Lamar,  244. 

V.  Langum,  870.  893. 

V.  Scribner.   150,    152,   190.  366. 
375. 

V.  Van    Geesen.    177,    537.    659, 
680,  708,  712. 
Fullerton  v.  Bank  of  L^nited  States, 

49. 
Fulton  v.  Aldrich,  1185. 

V.  Levy,  263. 

v.  Northern     Illinois     College, 
294,  298. 
Fulton  Ins.  Co.  v.  Baldwin.  389. 
Punch  v.  Abenheim.  423. 
Funk  V.  McReynolds.  102. 
Furbush  v.  Goodwin,  93. 
Furguson  v.  Smith,  157,  267. 
Furlong  v.  Edwards.  799. 
Furnas  v.  Durgin,  242,  746. 


1778 


TABLE    OF 

References  arc 


Gable  v.  Scarlett,  94. 

V.  Seibin.  1204. 
Gadberry  v.  ]\IcClurc.  601. 
Gadsden  v.  Whaley,  788. 
Gafford  v.  Proskauer,  440. 
Gage  V.  Board  of  Directors.  213. 

V.  Brewster.  179,  180.  184,  392, 
1191,  1243. 

V.  Jenkinson,  741,  743. 

V.  Perry,  212,  213,  488,  1688. 

V.  Porter,  1235. 

V.  Sanborn,  574.  916. 

V.  Ward,  155. 
Gaines  v.  Thompson,  605. 

V.  Walker.  182. 
Gair  v.   Tuttle,  624,  638,  843,  852, 

893. 
Gale  V.  Battin,  92. 

V.  Carter,  177,  798,  1009. 

V.  ]\Iorris,  330. 

V.  Parks,  702,  719. 

V.  Ward,  492. 
Gallagher   v.    Egan,    260,   985,    990, 
994,  1020. 

v.  Shipley,  490. 
Gallentine  v.  Cummings,  545. 
Galloway  v.  Craig,  29. 
Galvaston,  H.  &  H.  R.  Co.  v.  Cow- 
drey.  95. 
Galvin  v.  Wiggan,  70. 

V.  Woollen,  340. 
Gahvay  v.  Fullerton,  93,  154. 
Gamble  v.  Caldwell,  609,  683,  692. 

V.  Horr,  412. 

V.  Voll,   1105. 
Gaml)ril  v.  Doe,  409. 
Games  v.  Stiles.  366. 
Gammel  v.  Goode,  480. 
Gammon  v.  Everett,  344. 

V.  Freeman,  51,  65. 

V.  Johnson,  182. 

V.  Wright,  294. 
Gamut  V.  Gregg,  967. 
Gantt  V.  Gantt,  415. 
Gantz  V.  Toles,  908,  1105. 
Gant7.er  v.  Schmeltz,  1009. 


CASES. 

to  Sections. 

Ganz  V.  Lancaster,  467. 
Garcic  v.  Shelden,  511. 
Gardiner  v.  Schermerhorn,  609,  618, 
624.  640,  645,  647,  653. 

V.  Tyler,  827. 
Gardner  v.  Brown,  166.  172. 

V.  Cohn,  385. 

V.  Finley.  714,  950. 

V.  Heartt.  13,  302,  703. 

V.  Lansing,  183. 

V.  Ogden,  971. 

V.  Peckham,  370. 
Gargan  v.  Grimes,  211. 
Gargon  v.  Gargon,  1135. 
Garitee  v.  Popplein,  640. 
Garnar  v.  Bird,  433. 
Garnett  v.  Macon,  676. 
Garnsey    v.    Rogers,   244,   245,    246, 

248,  249,  250,  481. 
Garr  v.  Bright,  985,  988. 
Garrard  v.  Lord  Louderdale,  168. 
Garretson  Invst.  Co.  v.  Arndt,  527, 

762. 
Garrett  v.  Crawford,  938. 

V.  Ellis,  1252. 

V.  AIoss,  627,  639,  649. 

V.  Peirce,  332. 

V.  Puckett,  115. 
Garrison  v.  Parsons,  468. 
Garstone  v.  Edwards,  626. 
Garth  v.  Ward,  1114. 
Gartside  v.  Outley.  177. 
Garvin  v.  Garvin,  407. 
Garwood  v.  Garwood,  679. 
Gary  v.  May,  80. 
Garza  v.  Howell,  209,  700. 
Gaskeld  v.  Durdin,  365,  1114. 
Gaskell  v.  Viqnesney.   1183.   1184. 
Gaskill  v.  Sine,  478,  584,  591.  602. 
Gaskin  v.  Anderson,  671,  721. 
Gates  v.  Boston  &  New  York  Air 
Line  Railway  Company,  63, 
127,  130,  259. 

V.  De  La  Mare,  684. 

v.  Ege,  1135,  1225. 
Gate  wood  v.  Gatewood,   1126. 
Gatz  v.  Toles,  1105. 
Gault  v.  Equitable  Trust  Co.,  718. 


TABLE    OF 

References  are 

Gay  V.  Davis,  1003. 

V.  Paine,  49. 
Gaylord  v.  Knapp,  227. 

V.  City  of  Lafayette,  13,  533, 
Gebhart  v.  Hadley,  232. 
Geddis  V.  Packwood,  1031. 
Geery  v.  Geer>',  413. 
Geib  V.  Reynolds,  478. 
Geishaker  v.  Pancoast,  1117. 
General  Electric  Co.  v.  La  Grande 
Edison    Electric    Co.,    127, 
132. 
George  v.  Arthur,  918,  927,  955. 
V.  Cooper,  161. 
V.  Gardner,  1251. 
V.  Keniston,   537. 
V.  Kent,  584,   1180,   1209. 
V.  Wood,    478,    584,   602,    1065, 

1180,  1209,  1212. 
V.  Woodward,  104. 
Georgia  Ins.  &  Trust  Co.  v.  Elliott, 

81. 
Georgia  Railroad  &  Banking  Co.  v. 

Pendleton,  1003. 
Gephart  v.  Starrett,  784. 
Gerardi  v.  Christie,  476. 
Gerber  v.  Sharp,  102,  111. 
Gerhardt  v.  Ellis,  656,  1055. 

V.  Tucker,   1029. 
German  American  Bank  v.  Champ- 
lin,  259. 
V.  Dorthy,  619,  651. 
V.  Russell,  618. 
German  Bank  v.  Griffin,  583. 
German  Loan  Society  v.  Kern,  358, 

359. 
German   Savings   Bank  v.   Carring- 
ton,  871. 
V.  Muller,  193. 

V.  Sharer,    860,    879.    890,    910, 
1017. 
German  Sav.  &  L.  Soc.  v.  Hutchin- 
son, 72,  1020. 
v.  Kern,  545,  552. 
Germania  Building  Assoc,  v.  Neill, 
964. 


CASES.  1779 

to  Sections. 

Germania  Life   Ins.   Co.   v.   Casey, 
598. 

V.  Potter,  7.  50,  58. 
Germania  Sav.  Bank  v.  Lemley,  518. 
Germantown    Farmers'    Mut.    Ins. 

Co.  v.  Dhein,  338. 
Germond  v.  Hcrmosa  Ice  Co.,  466. 
Gerrish  v.  Block,   1178.   1214,   1215, 

1220,  1230,  1235. 
Gerson  v.  Davis,  1224. 
Gerwig  v.   Sitterly,  409. 
Gest  v.  Flock,  671. 
Getting  V.  Mohr,  962. 
Gettsburgh  Electric  Ry.  Co.  v.  Elec- 
tric Light,  H.  &  P.  Co.,  41. 
Getzlaff  V.  Seliger,  416. 
Geuda  Springs  Town  &  Water  Co. 

V.  Lombard,    567,    624. 
Gewin  v.  Shields,  686. 
Gibbery  v.   ]\Iaggord,   1134. 
Gibbes  v.    Holmes,   122,    165. 
Gibbons  v.  Hoag,  65,  327. 

V.  Williams.  551. 
Gibbs,  In  re,  1017. 
Gibbs  V.  Haughowout.  1029. 

V.  O'Neil.  155. 

V.  Queen  Ins.  Co.,  224. 
Gibson  V.  Bailey,  120. 

V.  Cohen,  610. 

V.  Crehore,  156,  1066,  1102, 
1113,  1126,  1134,  1179,  1205, 
1206.  1210. 

V.  Hambleton,  7A2>. 

V.  :\Iartin,  772. 

V.  McCormick,  1065. 

V.  Muskett,  277. 

V.  Sweet,  618. 

V.  Renne,  467. 
Giddings  v.  Barney,  221. 
Gies  V.  Green,  225,  734,  756. 
Giesy  v.  Truman.  750. 
Gifford  V.  Corrigan.  242.  250. 

V.  Hort,  170. 

V.  McCloskey.   743. 

V.  Workman.  138. 
Gihon  V.  Belleville  Co.,  2n. 
Gilbert  v.  Avcrill.  242. 

v.  Gilbert.  109. 


1780  TABLE 

References 

Gilbert  v.  Hussman.  1082. 

V.  Maggord,  155. 

V.  Sanderson,  250. 

V.  Shaw,  48. 

V.  Wiman,  67. 
Gilbert's  estate,  /;;  re.  201. 
Gilchrist  v.  Foxen,  683. 

V.  Manning,  401. 
Giles  V.  Baremore,  74,  75,  79. 

V.  Com  stock,  758. 
Gill  V.  Henry.  420. 

V.  Lyon,  493.  584. 

V.  Weston,  303,  529,  683,  699. 
Gillaspie  v.  Murray,  324. 
Gillespie  v.  Moon,  423,  430. 
Gillet  V.  Moody,  759. 
Gillett  V.   Balcom,  49,   52,   53,  344, 
360,  717. 

V.  Eaton,  683. 

V.  Romig,  146. 
Gillette  v.  Smith,  11,  80,  273. 
Gilliam  v.  Moore,  51. 
Gillies  V.  Lent,  267. 
Gillig  V.  Maas,  398. 
Gillilan  v.  Fletcher,  81. 
Gillis   V.    Martin,    1029,    1038,    1205, 

1206,  1240. 
Gillispie  V.  White,  1141. 
Gillmour  v.  Ford,  54,  55. 
Gilman  v.  Carpenter,  565. 

V.  Hamilton,  364. 

V.  Heitman,  392. 
Gilmore  v.  Ferguson,  1005. 
Gilson  V.  Whitney,  978. 
Girard    Life    Ins.   &    Trust    Co.    v, 

Stewart,  239,  750. 
Girardeau  v.  Perkins,  324. 
Gist  V.  Pressley,  602. 
Gitt  V.  Watson,  679. 
Given  v.  Troxel,  1177. 
Givens  v.  McCray,  316. 

V.  Carroll.  683,  704. 
Givens'  Admr's  v.  Davenport,   161. 
Glacius  v.  Fogel,  234,  273,  354. 
Gladwyn  v.  Hitchman,  37,  54,  56. 
Glasius  V.  Fogel,  234. 
Glass  v.  Hulbert,  423. 

V.  Warwick.  154,  328. 


OF    CASES. 

arc  to  Sections. 

Gleason  v.  Kentucky  Title  Co.,  640. 

V.  Whitney,    1060. 
Gleaton  v.  Gibson,  294,  298. 
Gleiser  v.  McGregor,  1135. 
Gleises  v.  Maignan,  95,  96. 
Glen  V.  Fisher,  982. 
Glenn  v.  McCullough,  81. 

V.  Whipple,  464,  495,  496,  500. 
Gliddon  v.  Andrews,  1172. 
Glide  V.  Dwyer.  640,  645,  1020. 
Glideweld  v.  Spaugh,  431. 
Globe    Insurance    Company,    In    re 

receivers  of,  789. 
Globe  Insurance  Co.  v.  Lansing,  17, 

216,  217,  736,  964. 
Globe   Marble   Mills  Co.  v.   Quinn, 

177. 
Glos  V.  Roach,  793. 
Glover  v.  Payn,  1029. 
Gobe  V.  Carlisle,  120,  122. 
Goddard  v.  Clarke.  809. 

V.  Dakin.   1145. 
Godeflfroy  v.  Caldwell,  418. 
Godfrey  v.  Stock,  1052. 

V.  Warner,  473. 

v.  Watson.  1185. 
Godfrey  v.  Disbrow,  351. 
Godfry  v.  White,  535. 
Godwin  v.  Liberty-Nassau  Building 

Co.,  509. 
Goenen  v.  Schroeder,  392. 
Goerz  v.  Barstow,  692. 
Goldbeck's  Appeal,  1185. 
Gold  Dirt  Mining  &  Milling  Co.  v. 
Perigo      Mines,     Land     & 
Townsite  Corporation,  917. 
Golden  v.  Fowler,  528,  627. 
Goldsmid  v.   Stonehewer,    127,   167. 
Goldsmith  v.  Brown,  742. 

V.  Osborne,   556,  637. 

v.  Wright,  661. 
Gomme  v.  West,  825. 
Goodall  v.  Mopley,  101. 
Gooddale  v.  Wheeler,  941. 
Goode  v.  Colo.  Invst.  L.  Co.,  1010. 

V.  Job,  1256. 


TABLE    OF 

References  are 

Goodell  V.  Dewey,  1247. 

V.  Harrington,    619,    620,    654, 
663. 
Gooden  v.  Vinke,  793. 
Goodenow  v.  Curtis,  1215. 

V.  Ewer,  109,  146,  967,  969,  972, 
1027,  1113. 
Goodhue  v.  Churchman,  528. 
Gooding  V.  Ransom,  692. 

V.  Riley,  1220. 
Goodlett  V.   St.   Elmo   Invest.   Co 

738. 
Goodloe  V.  Clay,  53. 
Goodman  v.  Cincinnati  &  C.  R.  Co  , 
50.  56. 

V.  Durant    Building    and    Loan 
Association,  553. 

V.  Grierane,  1036. 

V.  Randall,  459. 

V.  White,    1,   2,    179,   972,   999, 
1106. 

V.  Winter,  1252. 
Goodrich  v.  FridersdorflF,  1027,  1204. 

V.  Jones,  490. 
Goodwin  v.  Gilbert,  1145. 

V.  Keney,  442,  447. 

V.  Richardson,  46. 

V.  Simonson,  735,  746. 

V.  Smith,  717. 

V.  Tyrrell,  212. 
Goodyear  v.  Betts,  770,  77Z. 

V.  Brooks,  506. 
Gooch  V.  Vaughan,  945. 
Gordon  v.  Decker,  1003. 

V.  Hobart,  28. 

V.  Lee,  1075. 

V.  Lewis,  1135,  1140. 

V.  McGinnis,  294,  297. 

V.  Stevens,  351. 

V.  Tweedy,  881. 
Gore  V.  Davis,  56. 

V.  Harris,  168. 

V.  Jenness,  302. 

v.  Stacpoole,  167,  170,  171. 
Gorham  v.  Farson,  968. 

V.  Stearns,  377. 
Gormley  v.  Bunyan,  1020. 
Gornog  v.  Fuller,  468. 


CASES.  1781 

to  Sections. 

Goss  V.  Lovell,  61. 

Gossom  V.  Donaldson,  380,  721. 

Gothard  v.  Flynn,  330. 

Gott  V.  Cook,  998. 

Gottlieb  V.  City  of  N.  Y..  685. 

Gottschalk  v.  Noyes,  70,  529. 

Goudy  V.  Gebhart,  401,  406. 

Gould  V.  Bennett,  29,  529. 

V.  Gager,  640,  644,  647,  650. 

V.  Garrison,  537. 

V.  Holland   Purchase   Ins.    Co., 
80. 

V.  Libby,  644,  650. 

V.  Marsh,  416. 

V.  :Mortimer,  619,  620,  622. 

V.  Newman,  92. 

V.  Railroad  Company,  703. 

V.  Wheeler,  179. 

V.  White,  79. 
Goulding  V.  Bunster,  416. 
Gouverneur  v.  Elmendorf,  422,  495, 
496. 

V.  Lynch,  494,  584,  1209. 

V.  Titus,  431. 
Gove  V.  Gove,  115. 

V.  Lyford,  1245. 
Government   Building   &  Loan    In- 
stitution v.  Richards,  1185. 
Gowan  v.  Jones,  614,  656,  662. 
Gowding  v.  Shea,  302. 
Gower  v.  Carter,  1005. 

V.  Howe,  93,  115,   198. 

V.  Winchester,   180,   1111,   1159, 
1244. 
Gowlett  v.  Han  ford,  56,  64. 
Grable  v.  McCiilloch,  156. 
Grace  v.  Hunt,  35,  120. 
Graffam  v.  Burgess,  640. 
Grafton  Bank  v.  Doe,  44. 
Graham  v.  Berryman,  56,  424. 

v.  Bleakie,    611,   624,    664,    665, 
666,  667,  670,  671,  675,  721. 

V.  Dickinson,  839. 

V.  Fitts,  338. 

V.  Graham.  44. 

V.  Jones,  66. 

V.  Lanham,  1177. 

V.  Long,  154. 


1782 


TABLE    OF    CASES. 
References  are  to  Sections. 


Graham  v.   Newman,  94,   115. 

V.  Stewart,  29,  359,  451. 

V.  Vining,  80,  165. 
Graham's  Exec'rs  v.  Carter,  163. 
Grandin  v.  Emmons,  324,  917. 

V.  Hart,  966. 

V.  Hernandez,  148. 
Grand   Island    Sav.   Si   L.    Asso.   t. 
Moore,    12,    72,Z,    738,    741, 
743. 
Grand  Rapids  v.  Grand  Rapids  and 

Ind.  R.  Co.,  294. 
Grandy  v.  Tippett,  1134. 
Granger  v.  Crouch,  103,  116. 

V.  Sheriff,  537. 
Grant  v.  Bennett,  366. 

V.  Duane,  166,  168,  1099. 

V.  Griswold,  229,  256,  742. 

V.  Ludlow,  67. 

V.  Parsons,  1185. 

V.  Phcenix  Mint.  L.  L.  Ins.  Co., 
792. 

V.  Spencer,  334. 

V.  Tallman,  495,  496.  497. 

V.  VanDercook,  527. 

V.  Winona   &    S.   W.    Ry.    Co., 

7Z7. 

Grant  County  v.  Colonial  &  United 

States    Mortgage   Co.,  914. 

Grantham  v.  Lucas,  784,  801. 

Grape  Creek  Coal  Co.  v.  Farmers' 

Loan  &  T.  Co.,  56.  508. 
Grattan  v.  Wiggins,  50,  54.  80,  93, 

102,  203,  1065.  1247. 
Gravelle     v.     Canadian     &     Amer. 
Mortg.  &  Trust  Co.,   1003. 
Graves  v.  Blanchard,  519,  900,  986. 

V.  Fritz,  384. 

V.  Hampton  Fire  Ins.  Co.,  1107. 
Gray  v.  Brignardello,  721. 

V.  Chaplin,  763,  772. 

V.  Fox,  508. 

V.  Freeman,  406,  436. 

V.  Gray.  982.  985. 

V.  Hannah,  983. 

V.  Hayhurst.  1248. 

V.  Lawridge,  81. 

V.  Lessington,  395. 


Gray  v.  Loud.  H.  M.  &  Sons'  Lum- 
ber Co..  584,  595. 

V.  McDowell,  81. 

V.  Robertson,  58,  1009. 

V.  Shaw,  574. 

V.  Toomer,  220,  234. 

V.  Veirs,  556. 

V.  Waldron,  412. 

V.  Williams.  1247. 
'      V.  Worst.  552,  555. 
Graybill  v.  Heylman,  762,  77Z. 
Graydon   v.    Church,    106,  201,  349. 
Greeley  v.  De  Cottes,  432. 
Green  v.  Bostwick,  759. 

V.  Butler.  1047. 

V.  Carson,  630. 

V.  Clark,  488. 

V.  Crockett.  242.  966. 

V.  Dixon,   146,   148,   1065,   1102, 
1133.   1180.   1189,   1205. 

V.  Doerwald,  540. 

V.  Drebilbis,  53. 

V.  Fry,  472. 

V.  Gaston,  80.  310. 

V.  Geiger,  731. 

V.  Goings,  49. 

V.  Green,  395. 

V.  Houston,  459. 

V.  Kellum,  1226. 

V.  Kemp.  46,  411,  966. 

V.  Marble,  93,  110,  Zi7. 

V.  McCord,  389. 

V.  Mussey.  970. 

V.  Paul,  661. 

V.  Phillips.  490. 

V.  Ramage.  584. 

^.  Scranage.  438. 

V.  Seymour.  412. 

V.  Tanner,  11S5. 

V.  Thornton,  1031. 

V.  Turner,  427.  1028,  1249. 

V.  Walker.  1129. 

V.  Westcott,  1189. 

V.  White,  Z67. 

V.  Wilding.  395. 

V.  Winter,  825. 

V.  Wvnn.  1124. 


TABLE    OF 

Refei-ct:ccs  arc 

Green  Real  Estate  Co.  v.  St.  Louis 
Mut.   House   Building   Co., 
941. 
Greene  v.  Bishop,  90S. 

V.  Greene,  1173. 

V.  Harris,  1219. 

V.  Tallman,  423,  424,  448,  449. 

V.  Tyler,  409,  411. 

V.  Warnick,  94,  116.  204,  417. 
Greenfield  v.  Mills,  476. 
Greenleaf  v.  Cook,  422. 
Greeninan  v.  Pattison,  50,  65,  752. 
Greenpoint    Sugar    Co.    v.    Whitin, 

176. 
Greenvault  v.  Davis,  478. 
Greenwell  v.  Moffett,  574. 
Greenwood  v.  Trigg,  Dobbs  &  Co., 

1087. 
Greer  v.  Turner,  566, 
Gregg  V.  Jones,  155. 

V.  Von  Phul,  69. 
Gregory  v.  Arms,  598. 

V.  Campbell,  50,  520,  525,   567, 
571,  908. 

V.  Rosenkrans,  689. 
Greiner  v.  Klein,  1126. 
Greist  V.  Gowdy,  469. 
Greither  v.  Alexander,  144,  459. 
Gresham  v.  Ware,  716. 
Grider  v.  Payne,  374. 
Grier's  Appeal,  397. 
Griffen  v.  Cooper,  1038. 
Griffin  v.  Durfee,  670. 

V.  Gingell,  589. 

V.  Griffin,   704. 

V.  Hodshire,   147. 

V.  Lovell,  120,  589. 

V.  Smith,  537. 
Griffith  V.  Fowler,  533. 

V.  Griffith,  367,  370. 

V.  Hadley.   574,    624.   627,   637, 
640. 

V.  Lovell,  589. 

V.  Pound,  146,  1201. 

V.  Thapwel.  780. 
Griffiths  V.  Hardcnbergh,  514. 
Griggs  V.  Banks,  1185. 
Grimmel  v.  Warner,   120,   122,  220. 


CASES.  1783 

to  Sections. 

Grinnan  v.  Piatt,  457. 
Grissler  v.  Powers,  412. 
Griswold  v.  Bardon,  661. 

V.  Fowler,    137,    138,    139,    144, 
375,  470,  574,  575,  577,  717, 
940. 
V.  :Mather,  978. 
V.  Miller,  367,  374. 
V.  Onondaga    Co.,    &c.,    Bank, 
473,  480. 
Grob  V.  Cuchman,  1087. 
Groff  V.  Jones,  542.  624. 

V.  Morehouse,     182,     923.    925, 

948,  951. 
V.  National      Bank     of     Com- 
merce. 551. 
Grogan  v.  Nolan.  1480. 
Gronfier  v.  Minturn.   1009. 
Grosscup  V.  German  Sav.  &  L.  Soc., 

482. 
Grosvenor  v.  Bethel.  705.  718. 

V.     Day,  393,  915,  916. 
Grove   v.    Great    Northern   L.    Co., 
921,  944. 
V.  Grove,  138. 
Grover  v.  Flye,  468. 
V.  Fox.   1235. 
V.  Hale,  943. 
V.  Hawthorne.  1038. 
V.  McNeely,  771. 
Groves  v.  Sentell,  287. 
Grube  v.  Lilienthal,  880. 
Grugeon  v.  Gerrard,  1243. 
Gruner  v.  Rufifner,  163.  682. 
Grunewald     v.     Commercial     Soap. 
Starch  &  Candle  INIanufac- 
tory.  518. 
Guarantee   Trust   &    S.    D.    Co.    v. 
Jenkins.  546.  573.  614.  656. 
v.  Green    Cove    Springs    &    M. 
R.  Co..  18.  43.  45. 
Guaranty   Sav.   &  L.   .Ass'c.  v.  As- 

cherman,    1003. 
Guardians'    Savings     Institution    v. 
Bowling      Green      Savings 
Bank.  788. 
Guest  V.  Byington,  391. 
Guffey  v.  6'Reiley,  457. 


1784 


Guild  V.  Leonard,  1145. 
Guilford  v.  Crandell,  295. 

V.  Jacobie,  Zl ,  211. 

V.  Minneapolis  S.  Ste.  '\l.  &  A. 
R.  Co.,  130. 
Guinn  v.  Locke,  1251. 
Guion  V.  Knapp,  229,  493,  494,  584, 
590,    594,    602,    855,    1065, 
1209. 
Gulf  C.  &  S.  F.  Ry.  Co.  v.  Blout, 

146. 
Gulick  V.  Loder,  72,  IZ. 
Gumpert  v.  Ell,  57. 
Gunby  v.  Ingram,  60. 
Gunderson  v.  Swarthout,  714. 
Gunel  V.  Cue,  67. 
Gunn  V.  Brantley,  1247. 
Gunning  v.  Carman,  1211. 
Gunnison  v.  Gregg.  411. 
Gunter  v.  Smith,  1140. 
Gushee  v.  Union  Knife  Co.,  566. 
Guthrie  v.   Field,   1247. 

V.  Guthrie,  663. 

V.  Kahle,    1029. 

V.  Quinn,  458. 

V.  Treat,  102. 
Gutzeit  V.  Pennie,  280. 
Guy  V.  Ide,  761. 
Gwyn  V.  Porter,  76. 
Guzenhauser  v.  Henke,  1006. 

H. 

Haaren  v.  Lyons,  136. 
Haas  V.   Chicago   Building   Society, 
792,  793,  798,  799,  822. 

V.  Dudley,  598. 
Haber  v.  Brown,  855. 
Habersham  v.  Bond,  839. 
Hackenhull  v.  Westbrook,  29. 
Hackensack  Water  Co.  v.   DeKay, 

127,   132,  207. 
Hackett  v.  Reynolds,  330. 
Hackley  v.  Draper,  547,  553,  622. 
Hackworth  v.  Zollars.  485. 
Hadden  v.  Larned,  420. 
Hadley  v.  Chapin,  340,  342. 

V.  Clark,  459. 

V.  Stewart,  1231. 


TABLE    OF    CASES. 

References  are  to  Sections, 

Haensel  v.  Pacific  States  Sav.  &  L. 

&  Bldg.  Co.,  1003. 
Haffley  v.  Maier,  345,  967,  1027. 
Hagan  v.  Walker,  209,  211. 
Hagar  v.  Brainard,  294. 
Hagen  v.  Walker,  209. 
Hagenman  v.  Esterly,  856. 
Hager  v.  Astorg,  148. 
Hagerman  v.  Sutton,  136,  345,  478. 
Haggart  v.  Wilczinski,  11. 
Haggarty  v.  Allaire,  467. 

V.  Byrne,  592. 

V.  McCanna,  56. 

V.  Pittman,   793. 
Hagmusson  v.  Charlson,  1135. 
Hagood  V.   Swords,  465. 
Hague  V.  Jackson,  209. 
Hahn  v.  Behrman,  1209. 

V.  Geiger,  417. 
Haigh  V.  Carroll,  719. 
Haight  V.  Burr,  799. 
Haile  v.  Nichols,  459. 
Haines  v.  Beach,  182,  184,  856.  1085. 

V.  Perkins,   146. 

V.  Taylor,  624. 
Hairston  v.  Hairston,  136. 
Haldane  v.  Sweet,  753. 
Haldeman  v.  Massachusetts  Mut.  L. 

Ins.  Co.  1003. 
Hale  V.  Anderson,  68. 

V.  Clauson,  619,   652,   654.  663. 

V.  Clawson,  663. 

V.  Gouverneur,  58,  64. 

V.  Peck,  52,  76. 
Haley  v.  Bagley,  432. 

V.  Bennett,  149. 
Hall  V.  Arnott,  333,  1033,  1107,  1137, 
1181. 

V.  Bamber,  333. 

V.  Bartlett,  936. 

V.  Bliss,   942. 

V.  Constant,   473,   567. 

V.  Crouse,   1174. 

V.  Davis,  462. 

V.  Dencklay,  1251. 

V.  Edwards  1209. 

V.  Erwin,   414. 

V.  Felton,  1256. 


TABLE 
References 

Hall  V.  Fisher,  539. 

V.  Gale,  464,  500. 

V.  Gardiner,  1243. 

V.  Hall  1107,  1220. 

V.  Harris,  603. 

V.  Home   Bldg.   Co.  480. 

V.  Huggins,  146,  147. 

V.  Jack   1114. 

V.  Klepzig,  165. 

V.  Morgan,  600,  748. 

V.  Musler  165, 

V.  Nelson,  21,  137,  146,  147,  148, 
152,  374,  389. 

V.  Richardson,  389. 

V.  Sands,  421. 

V.  Surtees,  74,  75. 

V.  Thomas,  886. 

V.  Westcott,  1214,  1227,  1248. 

V.  Young,  741,  754. 
Hall   Lumber   Co.,  The,  v.   Gustin, 

366,  367. 
Hallary  v.  Waller,  75. 
Hallesy  v.  Jackson,  1247. 
Hallett  V.  Hallett,  15. 

V.  Righters,  524. 
Halley  v.  Bradford,  1126,  1127. 
Hallock  V.  Smith,  143,  147. 
Halsey  v.  Reed,  112,  356,  481,  598, 

599,  743,  744,   748,   750. 
Halstead  v.  Board  of  Commission- 
ers of  Lake  Co.,  359. 
Halsted  v.    Halsted,  901. 

V.  Lake  Co.,  432. 
Hambrick  v.  Russell,  88,  212. 
Hamburger  v.   Baker,  389. 
Hamer  v.  McFeggan,  541. 

V.  McKinley-Lanning    Loan    & 
Trust  Co.,  537,  540,  544. 
Hamil  v.  Copeland,  1177. 
Hamilton  v.  Accessory  Transit  Co., 
The,  763,  772,. 

V.  Austin,  821. 

V.  Cutts,   498. 

V.  Dobbs,   113,   1128. 

V.  Fowler,   917,    1036. 

V.  Halpin,  317. 

V.  Lubukee,   114,   115,  623,  649. 

V.  Quimby,  392. 


OF  CASES.  1785 

are  to  Sections. 

Hamilton   v.   Royse,   584. 

V.  State,  683. 
Hamilton   Building  Assoc,  v.  Rey- 
nolds, 515. 
Hamlett  v.  Tallman,  468. 
Hamlin  v.  Douglas,  165. 

V.  McCahill,  209,  211,  212. 

V.  Parsons,  302. 
Hamlyn  v.  Lee,  825. 
Hammett  v.  White,   1177. 
Hammock  v.  Farmers  L.  &  T.  Co., 

765,   1030,   1168,  1173. 
Hammond  v.  Allen,  430. 

V.  American  Mut.  L.  Ins.   Co., 
1141. 

V.  Erickson,  1006. 

V.  Hopkins,  1247. 

V.  Leavitt,  1116. 

V.  Myrick,  589. 

V.  Paxton,  367,  375. 

V.  Perry,  140. 
Hammons  v.  Bigelow,  138. 
Hampshire  v.  Greeves,  324,  482,  923. 
Hampton  v.  Hodges.  302. 
Hancock  v.  Franklin  Ins.  Co.,  80. 

V.  Hancock,   108,  206,  209,  210. 

V.  Shaen,  171. 

V.  Youree,  624. 
Hand  v.  Dexter,  762. 

V.  Kennedy.    19.   221,   223,   242, 
246,  530. 
Handley  v.  Munsell,  483. 
Handman  v.  Volk,  65,  792, 
Hanford  v.  Finch,  1251. 

V.  Robertson,  527. 

V.  Rogers,  51,  65. 
Hanman  v.   Riley,    167. 
Hanna  v.  Davis,  1135,  1171. 

V.  Hanna,  772. 

V.  Kasson,  392. 
Hannan  v.  Hannan,  80,  382,  401. 
Hanning  v.  Ferrers,   1061,   1246. 
Hannon  v.  Hilliard,  346. 
Hanover  Fire  Ins.  Co.  v.  Tomlinson, 

756. 
Hansard  v.  Hardy,  1215,  1256. 
Hanscom    v.    Meyer,    577. 


1786  TABLE    OF 

References  arc 
Hansell  v.  Gregg,  98. 
Hansford  v.   Holdam,   335,  355. 
Hansom  v.  Kitterman,  917. 
Hanson  v.  Dunton,  14. 

V.  Keating,  1192. 
Harbert  v.  Dumont,  70. 
Harbison  v.  Houghton,  446. 

V.  Lemon,   1029. 
Harden, V.  Collins,    1177. 
Hardenbrook    v.    Sherwood,    397. 
Harder's  Appeal,  1189. 
Hardin  v.  Eames,  1064. 

V.  Hyde,  459. 

V.  Iowa    Railroad   &   Construc- 
tion  Company,   711. 
Harding  v.   Commercial  Loan   Co., 
422. 

V.  Garber,  812. 

V.  Gillett,  1129. 

V.  Harding,  667,  675. 

V.  Harker,    146,    725. 

V.  Le   Moyne,  722. 

V.  Mill    River   Woolen   Manuf. 
Co.,  2,7,  67. 

V.  Pingey,  1220. 

V.  Tifift.    473. 
Hards   v.    Conn.    Mut.   L.   Ins.  Co., 

374. 
Hardwick  v.  Bassett,  1010,  1187. 
Hardy  v.  Atkinson,  161. 

V.  Herriott.  720. 

V.  McClellan,  765,  771.  819. 

V.  Swigart.  389. 
Hargreaves   v.   Igo,  289. 

V.  Menken,    11,   38,  273,   295. 
Hargroves  v.  Cooke,  473. 
Harker  v.  Conrad,  473. 
Harkins  v.  Forsyth,  977. 
Harkness  v.  Toulmin,  69. 
Harlan  v.  Murrell,  340. 

V.  Smith,  335. 
Harlem  Co-Op.   Bldg.  &  L.  Assoc. 

V.     Qiiinn,  167. 
Harlem    Savings   Bank   v.   Mickels- 
l)urgh,'  242,    243,    253,    742. 
Harley  v.  Ritter.  267. 
Harlin  v.  Nation,  316,  640. 
Harlock  v.  Barnhizer,  1222. 


CASES. 
to  Sections. 

Harlow  v.  Boswell,  71. 
Harman  v.  Blackstone,  136. 
Harmer  v.  Priestly,  1243. 
Harms  v.  Palmer,   1107. 
Harner  v.  Dipple,  395. 
Harp  v.  Calahan,  343. 
Harper's  Appeal,  1027,  1029.  1185. 
Harper    v.    Ely,    60,    62,    63,    1185, 
1197.   1214,  1243. 

v.  Grambling,   801. 
Harrigan  v.  Wellmuth  1185. 
Harrington  v.  Baylcs,  979. 

v.  Fidelity  Loan  &  T.  Co.,  623. 

v.  Foley,  1029. 

v.  Slade,   79,  82.   152,  367,  374, 
863.  1114. 
Harris  v.  Bannon,  302. 

V.  iioone,   167. 

V.  Cannon,  395. 

V.  C.-issady   403. 

V.  Clap,    514. 

V.  Cornell.    172. 

V.  Creveling    567. 

V.  Cunnell,  626. 

V.  Ellis,  1176. 

V.  First  Nat.  Bank,  1013. 

v.  Fly.  521. 

V.  Gunnell,  640,  645. 

V.  Harlan,    102,    203. 

v.  Haynes,  85. 

V.  Hooper,  \b'2. 

V.  In^'eden.   1208. 

V.  Mattcrson,   1059 

V.  McCrosser.,  354. 

V.  McGovr-rn,   1251 

V.  Mead.  508. 

V.  Mills,    74,    75.    79,    80. 

V.  Mulock,  344. 

V.  Shee,  797. 

V.  U.    S.    Sav.    Fund    &    Invst. 
Co..  773. 

V.  Vaughn,  80. 

V.  Wilson.    324. 
Harrison   v.   Bray,  441. 

V.  Brown.  160. 

V.  Edwards.  602.  1183. 

V.  Guerin,  584.  588. 

V.  Harrison,  533. 


TABLE    OF 
References  arc 

Harrison  v.  Manson,  320. 

V.  Trustees   of    Phillips'   Acad- 
emy, 51,  1047. 

V.  Wise,  1105,  1192. 

V.  Wyse,  1105,  1206. 
Harsey  v.  Busby,  428. 
Harsh  v.  Griffin.  161. 
Harshaw  v.  McKesson,  56. 
Hart  V.  Altmeyer,  39. 

V.  Eeardsley,  540,  683. 

V.  Boyt,  75. 

V.  Goldsmith,  409,  1178. 

V.  Hayden,  367,  384. 

V.  Lindsay,  726. 

V.  Small,  777. 

V.  Wandle,   592. 
Hartley  v.  Harrison,  245,  411,  459, 
461,  743,  747. 

V.  Matthews,   313. 

V.  Meyer,  683,  702. 

V.  O'Flaherty,  584. 

V.  Tatham,  245,  416,  443,  459. 
Hartnett  v.  Wandell,  922. 
Harts  V.  Emery,  598. 
Hartshorne  v.  Hartshorne,  155,  879. 
Hartwell  v.  Blocker,  101,  346. 

V.  Riley,  Z7i. 
Hartsuff  v.  Hall.  58. 

V.  Huss,  661. 
Hartwick  v.  Woods,  618. 
Hartzog  v.  Goodwin,  733. 
Harvey  v.  Thornton,  137,  161. 

V.  Truby,  360. 
Harwood  v.  Cox,  627. 

V.  Marye,  162. 

V.  Underwood,  1233. 
Haskell  v.  Bailey,  74,  80,  90. 

V.  State,    1209. 
Haskie  v.  James,  622. 
Haskins    v.    Hawkes,    122,    1234. 
Hass  V.  Lobstein,  417,  419. 
Hasselman  v.  McKernan,  179,  1080, 

1105.  1117. 
Hassett  v.  Ridgley,  1226. 
Hastings   v.   Ala.   State   Land   Co., 
754. 

V.  Dollarhide.  395. 

V.  Stevens,    1211. 


CASES.  1787 

to  Sections. 

Hatch  V.   Garza,  978. 

V.  Kimball,  140. 

V.  Shold,  656. 

V.  Sykes,  702. 

V.  White,  17,  736,  964. 
Hatcher  v.  Chancey,  752. 
Hatfield  V.  Malcolm,  146. 
Hattier  v.  Etinaud,  445. 
Hauser  v.  Capital  City  Brewery  Co., 
466,  467. 

V.  Lamont,    1036. 
Haven  v.  Adams,  1114. 

V.  Pope,  537. 
Hawe  V.  Snydaker,  478,  1065. 
Hawkeye  Ins.  Co.  v.  Ma.xwell,  1116. 
Hawkins  v.  Hill,  66,  115,  333. 

V.  Homes,  1246. 

v.  Potter,  584. 
Hawkinson  v.  Banaghan,  1175. 
Hawley  v.  Bennett,  960. 

V.  Bradford,  879,  880,   1017. 

V.  Clowes,  799. 

V.  Whalen,  754. 
Haxtun  v.  Bishop,  49,  52,  344,  360. 
Hay's  Appeal,  614,  656. 
Hayden  v.  Bucklin,  365,  366,  367. 

V.  Burkemper,  717. 

V.  Drury,   25U. 

V.  Snow,  244. 
Hayes  v.  Frey,  126. 

V.  Harmony    Grove    Cemetery, 
676. 

V.  Kedzie,  468. 

V.  Ward,  112,  601,  1190. 

V.  Whitall,  79. 
Hayhurst  v.  Morin.  469. 
Haynes  v.  Backman,  640. 

V.  Meek,   726. 

V.  Rudd.  436. 

V.  Tredway,    1031. 

V.  Wellington.  50,  101,  579,  683. 
Hays  V.  Cretin,  1134. 

V.  Dorsey,  127,  207. 

V.  Gabon,  G.  L.  &  C.  Co.,  127. 

V.  Leonard.    691. 

V.  Lewis,  132,  207. 

V.  O'Connor,  478. 

V.  Reger,  478. 


1788  TABLE 

References 
Hayward  v.  Stearns,  179. 
Haywood  v.  Shaw,  865. 

V.  Ensley,    1256. 

V.  Underwood,   1211. 
Hazard  v.  Durrant,  1147. 

V.  Robinson,  1235,  1255. 
Hazeldine   v.   McVey,  483. 
Hazeltine  v.  Granger,  766. 
Hazle  V.  Bondy,  479. 
Hazelton  v.  Wakeman,  643,  654. 
Head  v.  Manner,  81. 
Heald  v.  Jardine,  1036,  1044. 
Healy  v.  Protection  Mut.  Fire  Ins. 

Co.,  470,  996,  1003,  1023. 
Hearsthorne  v.    Hearsthorne,    1211. 
Heath  v.  Blake,  526. 

V.  Hall,  62,  63,  92. 

V.  Page,  53,  409. 

V.  West,  396. 
Heaton  v.  Findley,  490. 
Hebrank  v.  Colell,  1017. 
Hebron  Society  v.   Schoen,  164. 
Hedge  v.  Holmes,  1180. 
Hedges  v.  Cardonnel,  908. 
Hedlin  v.  Lee,  918. 
Hees  V.  Nellis,  389,  983. 
Heffron  v.  Gage,  62,  129,  172. 

V.  Knickerbocker,  609. 
Hefner    v.     Northwestern    Mutual 
Life     Insurance     Company, 
196. 

V.  Urton,  155. 
Hegeman  v.  Johnson,  611,  664. 
Heid  V.  Vreeland,  240. 
Heidahl  v.  Geiser  Mfg.  Co.,  598. 
Heidgerd  v.  Cunningham,  138. 
Heighway  v.  Pendleton,  165. 
Heim  v.  Butin,  738. 

V.  Ellis,  374. 

V.  Vogel,  242,  743. 
Heimstreet    v.    Winnie,    178,    1105, 

1177. 
Heinmiller  v.  Hatheway,  916. 
Heinroth  v.  Frost,  683. 
Heinss  v.   Henry,  693. 
Heister  v.  Fortner,  1036. 

V.  Maderia,   1036. 
Heively  v.  Matteson,  469. 


OF    CASES. 
are  to  Sections. 

Hekla   Fire   Ins.    Co.   v.    Morrison, 

212,  482,  484. 
Helck  V.  Reinheimer,  485. 
Hele  V.  Bexley,  718. 
Heller  v.  King,   1114. 
Hellier  v.  Russell,   1006. 
Hellyer  v.  Baldwin,  912. 

V.  Stover,  596. 
Helmbold  v.  Man,  392. 
Helmer  v.  Krolick,  415. 
Helt  V.  Ellis,  1035. 
Hemm  v.  Small,  610. 
Hemmer  v.  Hustice,  571. 
Hemphill  V.  Ross,  147,  177. 
Hendershott  v.  Ping,  392. 
Henderson   v.   Astwood,   720,   1494. 

V.  Grammar,   1028. 

V.  Herrod,  103. 

V.  Lewis,   73. 

V.  Lowry,  627,  640. 

V.  Williams,  352. 
Hendricks  v.  Calloway,  649. 

V.  Hess,  417,  468. 
Hendrickson  v.  Evans,  420. 
Hendrix  v.  Gore,  387,  447,  468,  475. 

V.  Nesbit,   627. 
Hening  v.  Punnett,  721. 
Henkel  v.  Mix,  1135,  1145. 
Henkle  v.  Allstadt,  584,  855. 

V.  Royal  Exch.  Asso.  Co.,  1178. 
Henley  v.  Bush,  344. 
Hennesy  v.   Farrell,   85. 
Hennessey  v.  Walsh,  529. 
Hennessy  v.  Clough,  354. 
Henninger  v.  Herald,  683. 
Henry  v.  Clark,  1038. 

v.  Confidence    Gold    &    Silver 
Mining  Co.,  80,  85. 

V.  Davis,  349,  1029,   1038,   1042. 

V.  Jones,  1141. 

V.  Root,  395,  396. 

V.  State  Bank.  418. 
Henschel  v.  Mamero,  476. 
Henshaw   v.   Wells,   792. 
Hensicker  v.  Lamborn,  392. 
Hensley  v.  Whiffin,  203 
Henson  v.  Klicka,  566. 
Henthorn  v.   Security  Co.,   1057. 


TABLE    OF 

References  are 

Henty's  Case.   1126. 
Hepburn  v.  Kerr.  1082. 
Herb  v.  Metropolitan,  etc.,  19. 
Herber  v.    Christopherson,   482. 
Herbert  v.  Rowles,   1144. 

V.  Smith,   721. 
Herbert's   Case,  855,   1205. 
Herbert  Craft  Co.  v.  Bryan.  320. 
Hermans  v.  Clarkson    468,  788. 

V.  Fanning,  683,  686. 
Herrick  v.  Tallman,  610. 
Herrick's    Adm'r.   v.   Teachout,    18, 

310. 
Herring  v.  New  York,  L.  E.  &  W. 
R.  Co.,  172,  183,  276. 

V.  Sutton.  943. 

V.  Woodhull,  115. 
Herrington   v.   Herrington,   367 

V.  McCollum,  102. 
Herron  v.  Herron,  252. 
Hersey  v.  Turbett,  367. 
Hersner  v.  Martin,  285,  309. 
Hertle  v.  McDonald,  1247,  1251, 
Hess  V.  Beates,  982,  985. 

V.  Feldkamp,  179. 
Hesseltine  v.  Hodges,  609. 
Heuisler  v.   Nickum,   182. 
Hewett  V.  Dean,  43,  49. 
Hewitt  V.  Dean,  61,  62,   1003. 

V.  Price,  645. 

V.  Templeton,  310,  392. 
Hewson  v.  Deygert,  571,  573. 
Heyer  v.  Deaves,  533,  534,  537,  604. 

V.  Pruyn,    74,    79,    80,    82,    242, 
474. 
Heyman  v.  Lowell,  146. 
Heyward  v.  Judd,  310,  966. 
Heywood  v.  Hartshorn,   125. 
Hiatt  V.  Goblt,  335,  340. 

V.  The   State-Kitselman,    133. 
Hibernia   Savings   &   Loan    Soc.   v. 
Behnke,   556,    624,    628. 

V.  Cockran,    146. 

V.  Lewis,  725. 
Hibernian  Banking  Assc'n  v.  Law, 

209. 
Hibernian  Savings  &  Loan  Society 
V.     Conlin,  337. 


CASES.  1789 

to  Sections. 

Hibernian  Savings  &  Loan  Society 
V.  Herbert,  162. 

V.  Moore,  522. 

V.  Ordway,  484. 
Hichens  v.  Kelly,   122,   132. 
Hickman  v.  Cantrell,  1029, 
Hicks  V.   Hamilton,  746. 

V.  Hicks,  1044,  1047,  1048. 

V.  Porter,  374. 
Higbee  v.   Daeley,  944. 
Higginbotham  v.  Cornwell,  351. 
Higginbottom  v.  Benson,  716,  1183. 

1189. 
Higgins  v.  York  Buildings  Co.  718. 

V.  Peterson,  725. 

v.  Scott,  80. 

V.  West,  966. 
Higginson  v.  Mein,  75. 
Higgs  v.  Hanson,   100,  340. 
Higham  v.   Harris,  242. 
Higman  v.  Humes,   1222. 

V.  Stewart,   387. 
Hildreth  v.  Jones,   155. 
Hile  V.  Davidson,  245.  496. 
Hiles  V.   Coult,   590,    1209. 

v.  Fisher,  683. 

V.  Milwaukee    Power    &    Light 
Co.,  1036,   1043. 

V.  Moore,  812,  813.  818. 
Hill  V.  Alliance  Building  Co.  411. 

V.  Boyland,  122. 

V.  Buckley,  434. 

V.  Butler,  412.  442,  464,  495,  500. 

V.  Caillovel.  418. 

V.  Edmonds,  154. 

V.  Edwards,  1029. 

V.  Eldred,  1020. 

V.  Eliot,  92. 

V.  Epley,  458. 

V.  Henry,   52,   53,  344. 

V.  Holliday,    1087. 

V.  Hoole,   401. 

V.  Hoover,  627,  640. 

V.  Howell,  1065. 

v.  Johnson,  882. 

V.  McCarter,  84,   590. 

V.  McReynolds,  530,  531. 

V.  Meeker,    107. 


1790  TABLE    OF 

References  are 

Hill  V.  Minor,  459. 

V.  National  Bank,  490. 

V.  Parsons,  446. 

V.  Payson,  1213. 

V.  Pettit,  660,  663. 

V.  Sewald,  492. 

V.  Syracuse,  B.  &  N.  Y.  R.  Co., 
71. 

V.  Thacter,  259. 

V.  Townley,    161,   740. 

V.  Wentworth,  490,  492. 

V.  White,  1105. 

V.  Wyntworth,    714. 
Hillary   v.   Waller,   74,   75. 
Hillebrand  v.  Nelson,  370. 
Hiller  v.  Nelson,  1134. 
Hills  V.  Milwaukee  Power  &  Light 
Co.,   1036,  1043. 

V.  Parker,  791. 

V.  Place,  49,  344. 
Hilton  V.  Lothrop,  122,  160,  1233. 
Hinchliflfe  v.  Shea,  155. 
Hinchman  v.  Emans,  610,  1050. 

V.  Stiles,  159,  879. 
Hinckley  v.  Smith,  267. 
Hinkle  v.  Champion,  912. 
Hinson  v.  Adrian,  179,  182. 
Hinton  v.  Leigh,  650. 

V.  Pritchard,  1194,  1213. 
Hinzie  v.  Kempner,  161. 
Hirsch  v.  Livingston,  177,  668. 
His  Majesty's  Attorney  General  v. 

Winstanley,  310. 
Hitchcock  V.  Bank,  1044. 

V.  Bank  of  Pennsylvania,  966. 

V.  Harrington,  351,  1050. 

V.  Merrick,  1003,  1005,  1007. 
Hitchcock's  Heirs  v.  United  States 
Bank  of  Pennsylvania,  127. 
iliichler  v.  Citizens'  Bank,  693. 
Hobart  V.  Abbot,  120,  197,  201,  1234. 

V.  Hobart,  981. 
Hobbs  v.  Norton,  1061,  1246. 
Hobby  V.  Pemberton,  50,  579. 
Hocket  V.  Burns,  58. 
Hodder  v.  Ruffin,  667,  675. 
Hodgdon  v.  Davis,  62. 

V.  Heidman,  165. 


CASES. 

to  Sections. 

Hodge  V.  Scott,  476. 
Hodge's  Appeal,  103. 
Hodgen    v.    Guttery,    179,    180,   871, 

1105,  1111,  1123,  1244. 
Hodges  v.  Taylor,  280. 

V.  Walker,  667. 
Hodgdon  v.  Davis,  537. 
Hodgkison  v.  Wyatt,  409. 
Hodgson  V.  Bell,  67. 

V.  Treat,  146. 
Hodle  V.  Haley,  83,  1249,  1256. 
Hodson  V.  Treat,  50,  579,  683,  1082, 

1117. 
Hoes  V.  Boyer,  341,  362. 
Hoey  V.  Kinney,  839. 
Hoffacker    v.    Manufacturers'    Nat. 

Bank,  49. 
Hoffman  v.  Burke,  545. 

V.  Deul,  1141. 

V.  Groll,  496. 

V.  Harrington,  75,  1247. 

V.  Lee,  456. 

V.  McCracken,  640. 

V.  Risk,  112. 

V.  Sullivan,  836. 

V.  Treadwell,  267. 

V.  Wilhelm.   305,    1050. 
Hogan  V.  Hoyt,  711. 

V.  Kurtz,  1251. 

V.  Stone,    1206. 
Hohl  V.  Reed,  341. 
Hokanson  v.  Gudenson,  690. 
Holbrook  v.  Baker,  389. 

V.  Bliss,  382. 

V.  New  Jersey  Zinc  Co.,  367. 

V.  Receivers  of  American  Fire 
Ins.  Co.  440,  444. 
Holcomb  V.  Holcomb,  209,  211,  353, 
482,  484,  610. 

V.  Richards,  120. 
Holdane  v.  Sweet,   156. 
Holden  v.  Eaton,  344. 

V.  Gilbert,  43,  440,  441,  HS,  446, 
450,  949. 

V.  Kynaston,  982. 

V.  Pike.  584,  855. 

V.  Rison,  459. 

V.  Sackett.  14.  50,  579,  670,  721. 


TABLE    OF 
References  are 
Holden  Land  &  Live  Stock  Co.  v. 
Interstate      Trading      Co., 
1038. 
Holdipp  V.  Otway,  514. 
Holdridge  v.  Sweet,  115,  199. 
Holdroff  V.  Remlee,  62. 
Holdsworth   v.    Holdsworth,   389. 

V.  Shannon,  553,  627. 
Holiger  v.  Bates,  693. 
Holland  V.  Baker.  168,  1233. 

V.  Brown,  136. 

V.  Citizens'  Sav.  Bank,  323,  628, 
686. 

V.  Cofield,  376. 

V.  Hodgson,  490. 

V.  Holland,  155. 
Holland  Trust   Co.  v.   Hogan,  606, 
609,  624. 

V.  Thomson-Houston      Electric 
Co.,  556. 
Hollenback  v.  Barnard,  802. 

V.  Donnell,   769,   792,   793,   795, 
806. 
Holley  V.  Glover,  512. 
Holliger  V.  Bates,  180,  566,  693. 
Hollingsworth    v.    Campbell,    1068, 
1235,  1236. 

V.  Koon,   565,   985,    1215,    1236, 
1243. 

V.  Spalding,  942. 
Hollis  V.  Francois,  233. 

V.  Hollis,  14,  918,  951. 
Hollister  v.  Mann,  721. 

V.  Stewart,  326. 
Holly  Realty  Co.  v.  Wortmann,  374. 
Holman  v.   Bailey,  468. 

V.  Bank  of  Norfolk,  341. 
Holman  v.  Lewis,  374. 
Flolmes  v.  Bell,  816. 

V.  Boyd,   127. 

V.  Bybee,  179,  1111. 

V.  Crooks,  533. 

V.  French,  94. 

V.  Grant,  1189. 

V.  Martin,  397. 

V.  McGinty,  115. 

V.  Remsen,  1245. 

V.  Rhodes,  67. 


CASES.  1791 

to  Sections. 

Holmes  v.  Seashore  Electric  R.  Co., 
12. 

V.  State  Bank,  707. 

V.  State  Bank  of  Duluth,  707. 

V.  Turners    Falls    Lumber   Co., 
940. 

V.  Wintler.    14. 
Holridge   v.    Gillespie,    1029,    1038. 

1044,  1047,  1048,  1155. 
Holt   v.    Rees,    1220. 

v.  Rust-Owen  Lumb.  Co.,  347. 
Holy  Ghost  Ass'c.  v.  Fehlig,  584. 
Home  Insurance  Co.  v.  Clark,  541, 
552. 

v.  Smith,  294. 
Homes  v.  Fish,  1173. 
Homeopathic  Medical  L.  Ins.  Co.  v. 
Sixbury,  66,  181,  843,  857.   ' 
Homeopathic   Mut.    L.    Ins.    Co.   v. 

Marshall,  109. 
Hoock  v.  Sloman,  549,  661. 
Hoodless  V.  Reid,  62,  326. 
Hooker  v.  Martin,  294. 
Hooper  v.  Castetter,  662,  670,  843, 
850. 

V.  McDade,  734. 

V.  Winston,  789. 
Hoopes    V.    Auburn    Water   Works 
Co.,  710. 

V.  Bailey,   1220. 
Hoover  v.  Hale,  540. 

V.  Johnson,  1146. 
Hoovers  v.  Joseph,  1116. 
Hope  V.  Booth,  50,  579. 

V.  Shevill,    160. 
Hopfensack,  v.  Hopfensack,  828. 
Hopkins  v.  Canal  Proprietors,  769. 

V.  Ensign,  136. 

V.  Hopkins,  170. 

V.  McLaren,  365. 

V.  Stout.  81. 

V.  Ward,  95. 

V.  Wiard,  567.  618. 

V.  Wolley.   584.    1209. 

V.  Worcester   and    Birmingham 
Canal  Co.,  584. 
Hoppe  V.  Fountain,  161,  162. 
Hopper  V.   Smyscr,  584. 


1792 


TABLE    OF 

References  are 


Hoppin  V.  Doty,   1117. 

V.  Hoppin,   488. 
Hoppock  V.  Conklin,  640,  644. 

V.  Ramsey,  214. 
Herd  v.  James,  967. 

V.  Lee,  81. 
Horn  V.  Bennett,  54,  55. 

V.  Cole,  457. 

V.  Indianapolis  Nat.  Bank,  1105, 
1139,  1177,  1189,  1191,  1231. 

V.  Jones,  138.  146,  150,  1105. 

V.  Keteltas,  11. 

V.  Volcano  Water  Works,  723. 
Hornby   v.    Cramer,    137,    165,  917, 
919,  927,  931,  953,  955,  1014. 
Horner  v.  Corning,  567. 
Horr  V.  Herrington,  670,  850,  1105, 

1123. 
Horrigan  v.  Wellmuth,  470,  516. 
Horsey  v.  Hough,  639. 
Horstman  v.  Gerker,  92,  416,  419. 
Horton  v.  Davis,  459. 

V.  Haines,  352. 

V.  Ingersoll,  212,  213. 

V.  Maine,  609. 

V.  McCoy,  839. 

V.  Mofifitt.  1154,  1176. 

V.  Murdon,  1140. 
Hosford  V.  Johnson.  179,  357,  1105, 
1185,  1191,  1243. 

V.  Nichols,  392. 
Hosie  V.  Gray,  43. 
Hoskin  v.  Woodward,  303. 
Hoskins  v.  Hutchings,   156. 
Hospes  V.  Almstedt,  788. 

V.  Sanborn,  1073. 
Hostetter  v.  Alexander,  417. 
Hotaling  v.   Marsh,   711. 

V.  Montieth,    1006. 
Hotchkiss  V.  Clifton  Air  Cure,  209, 
637,  679. 

V.  Crocker,  259. 
Hothorn  v.  Louis,  43,  62. 
Hough  V.  Bailey,  80,  340,  1256. 

V.  Doyle,  50,  65. 

V.  Horsey,   411,  459. 

V.  Osborne,  93,  102. 

V.  Wells,  1006. 


CASES, 

to  Scctiom. 

Houghton  V.  Kneeland,  147. 

V.  Mariner,   161,   165,  2>77. 
House  V.   Eisenlord,  328,  985,  987, 
1001. 

V.  House,  1126. 

V.  Lockwood,  34,  294,  296,  971. 
Houser  v.  Lamont,  1029. 
Housman  v.  Wright,  640,  644. 
Housten  v.  Aycock.  974. 
Houston  V.  National  Mut.  BIdg.  & 
L.   Ass'c,   320,    1115,    1247, 
1248. 

V.  Nord,  67,  283. 
Houts  V.  Olson,  1247. 
Hovenden  v.  Annesley,  7Z. 

V.  Knott,  483,  1105. 
Hover  v.  Hover,  979. 
Hovey  v.  Hill,  89,  367,  375,  418,  419. 

V.  Hovey,    1021. 

V.  McCrea,  354. 

v.  Rubber  Tip  Pencil  Co.,  946, 
947. 
How  V.  Vigures,  122. 

v.  Weldon,  640. 
Howard  v.  Ames,  424. 

V.  Ascutney    M.    D.    Co.,    1102. 

V.  Bond,  661,  722,  725,  726. 

V.  Bugbee,  1135. 

V    Burns,   479. 

v.  Farley,  62. 

V.  Fulton,  547,  550. 

V.  Harris,  1036,  1042,  1045. 

V.  Hatch,  917,  918,  927,  953,  955, 
958,  960. 

V.  Hildreth.  75.  79. 

v.  Ives,    1141. 

V.  McCall,  473. 

V.  Robins,  743. 
Howard  Ins.  Co.  v.  Halsey,  584,  594, 

602. 
Howe  In  re,  331,  413,  858. 
Howe  v.  Dibble,  100,  203. 

v.  Freeman,  1232. 

V.  Lemon,  735,  754. 

V.  Towner,  357. 
Howe  Mach.  Co.  v.  Pettibone,  263. 
Howell  V.  Baker,  640. 

V.  Hester.  640. 


TABLE    OF 

References  are 

Howell  V.  McAden,   127,   130. 
V.  Mills,  639,  654. 
V.  Ransom,  436. 
V.  Ripley,  758,  759,  760,  793,  795, 
802.  806,  809,  817,  819,  827. 
V.  Schenck,  716,  717. 
Howes  V.  Davis,  828. 
Rowland    v.    Shurtleff,    74,    75,    76, 

79,    80,    1252. 
Hewlett   Ex   parte   v.   Carner,  650, 

652. 
Hower  v.  Cruikshank,  584,  1102. 
Howwell  V.  McAden,  127. 
Hoy  V.  Bramhall,  244,  478,  591.  599, 

602,  749. 
Hoyle  V.   Pittsburgh  &  M.  R.  Co., 

491. 
Hoysradt  v.  Holland,  112. 
Hoyt  V.  Bramhall,  1209. 
V.  Doughty,  331. 
V.  Little,  628. 
V.  Macon,  406. 

V.  Martense,  105,  202,  349,  883. 
V.  Pawtucket  Inst,  of  Savings, 
623. 
Hubbard  v.  Ascutney  Mill  Dam  Co., 
1102. 
V.  Bagshaw,  490. 
V.  Cummings,  395,  396. 
V.  Elden,  835. 
V.  Guild,  782. 
V.  Harrison,   114. 
V.  Jarrell,  327,  639. 
V.  Missouri  V.  L.  Ins.  Co.,  80. 
V.  Shaw.  1197. 
V.  Taylor,  622,  640. 
V.  University  Bank  of  Los  An- 
geles, 228,  229. 
Hubbell  V.  Moulson,  11,   13. 
V.  Schreyer,  834. 
V.  Sibley,  90,  155,  158,  182,  577, 
932,  934,  940,  942,  943,  949, 
953,  1250. 
Hubbell,    Hall    &    Randall    Co.    v. 

Brickman,  417. 
Huber  v.  Brown,  1005,  1006. 
V.  Case,  676. 
V.  Crossland,  610. 

Mortg.  Vol.  II.— 113. 


CASES.  1793 

to  Sections. 

Hubinger  v.  Cent.  Trust  Co.,  721. 
Hudgens  v.  Morrow,  640,  1067. 
Hudgins  v.  Morrow,  640,  1067. 
Hudnit  V.  Nash,  209,  211. 
Hudson  V.  Barham,  585. 

V.  Glencoe  Gravel  Co.,  468. 
Hudson  V.  Kelly,  1233,  1234. 
Huebsch  v.  Scheel,  248. 
Huerstel  v.  Lorillard,  785. 
Huff  V.  Farewell,  589. 
Huggins  V.  Hall,  120. 
Hughes  V.  Edwards,  11,  17,  74,  75, 
79,    80,    82,    310,    474,    736, 
1029,  1036,  1247,  1252,  1253. 

V.  Graves,  589,  717. 

V.  Hatchett,  793,  806. 

V.  Johnson,  201,  1020. 

V.  Olson,    1087. 

V.  Patterson,    137. 

V.  Riggs,  178,  576,  640. 

V.  Thweatt,  401. 

V.  United  States,  1245. 

V.  Whaples-P.   Gro.   Co.  645. 
Hughland  Land  &  Building  Co.  v. 

Audas,  573. 
Hugonin   v.    Basely,   772,,   785,   799, 

815. 
Huguenin  v.  Baseley,  725. 
Hulbert  v.  Clark,  738. 

v.  McKay,   895,   896,   899,   904, 
906. 

V.  Mut.  Ins.  Co.,  262. 
Hulen  V.  Chilcoat,  379. 
Hulfish  V.  O'Brien,  245,  495. 
Hull  V.  Adams,  71. 

V.  Alexander,  239,  750. 

V.  King,  549.  568. 

V.  Lyon,   140,    151. 

V.  Spratt,  871. 
Humboldt    Sav.    &    L.    Society    v. 

March,  619,  620. 
Humes  v.  Company,  45. 
Hummel  v.  Brown,  53. 
Humphrey  v.  Beaumont  Irrigating 
Co.,  566. 

V.  Chamberlain,  649. 

V.  Hurd,  1054. 


1794  TABLE 

References 
Humphreys  v.  McKissock,  700. 

V.  Morton,    102. 
Hunneman  v.  Lowell  Inst.,  873. 
Hunsden  v.  Cheyney,  1061,  1246. 
Hunsecker  v.  Thomas,  165. 
Hunsicker  v.  Richardson,  138. 
Hunsucker  v.  Smith,  90,  120. 
Hunt  V.  Acre,  161,  162,  163. 

V.  Bradfield,  299. 

V.  Bridgham,  81. 

V.  Chapman,  227,  440,  441,  983, 
1007. 

V.  Dohrs,  220,  225,  328,  734. 

V.  Fisher   167. 

V.  Fownes,  1007. 

V.  Frost,  51,  65. 

T.  Harding,  50,  65,  327,  752. 

f.  Hunt,  151,  610,  1050. 

vr.  Keech,  62. 

V.  Lewin,  217,  220,  227,  727,  966. 

V.  Livermore,   499. 

V.  McConnell,  589. 

V.  Nolen,  213. 

V.  Priest,  825. 

V.  Purdy,  229,  253,  256. 

V.  Stiles,  17,  101. 

V.  Wallis,  528. 

V.  Whitehead,  640,  646. 
Hunt's    Heirs    v.    Ellison's    Heirs, 

1251. 
Hunter  v.  Coffman,  1250. 

V.  Dennis,  1098. 

V.  Hays,  793,  795. 

V.  Hunter,   967. 

V.  Levan,  106. 

V.  Macklew,    137. 

V.  Marlboro,  982,  985. 

V.  Mellen,  640. 

V.  Osterhoudt,  473. 
Huntington  v.  Smith,  114,  115. 
Hurck  V.  Erskine,  55,  102,  103. 
Hurd  V.  Callahan,  984,  988. 

V.  Case,  147,  1112. 

V.  Coleman,  17,  94. 

V.  Davis,  259. 
Hurley  v.  Cox.  80. 
Hurn'v.  Hill.  1135,  1142. 
Hursh  V.  Hursh,  768,  792,  793. 


OF    CASES. 
are  U>  Sections. 

Hurst  V.   Harper.  833.  889. 
Hurt  V.  Stull,  533. 
Hurtt  V.  Crane,  20,  158. 
Hurxthal's  Executrix  v.  Hurxthal's 

Heirs,  576. 
Husky  V.  Maples,  72. 
Huss  V.  Morris,  423. 
Hussey  v.  Fisher,  468. 

V.  Hill,  312. 

V.  Hussey,  339. 
Husted  V.  Dakin,  570,  858,  902. 
Huston  V.  Neil,  155. 

V.  Stringham,  138,  459,  858. 
Hutcheon  v.  Johnson,  423. 
Hutchins  v.  King,  302,  799. 

V.  Masterson,  490,  716. 
Hutchinson  v.  Crane,  92. 

V.  Gill,  453. 

V.  Hampton,  453,  828. 

V.  Kay,  490,  491. 

V.  Massareene,  759,  791. 

V.  Smidt,  661. 

V.  Swartzweller,  469. 
Hutchison  v.  Yahn,  545. 
Huyck  V.  Graham,  932. 
Huyler  v.  Atwood,  243.  257. 
Huzzey  v.  Hefferman,  693. 
Hyatt  V.  Twomey,  422. 
Hyde  v.  Greenhill,  785. 

V.  Heaton,   662. 

V.  Miller,  598. 
Hyland  v.  Stafford.  945. 
Hyman  v.  Devereux,  115. 
Hyndman  v.  Hyndman,  1044,  1047, 
1048,  1154. 


I. 


Iddings  V.  Bruen,  760,  787. 
Ide  V.   Spencer,  465. 
Igglesden,  In  re,  861,  890. 
Iglehart  v.  Arminger,  533. 

V.  Bierce,  118.  133,  786. 

V.  Crane,  584,  591,  602,  855. 

Illinois  L.  &  L.  Co.  v.  Bonner,  395. 

Illinois   Nat.   Bank  v.   Trustees   of 

Schools,  485,  1105. 


TABLE    OF 
References  are 

Illinois  Starch  Co.  v.  Ottawa  Hy- 
draulic Co.,  968. 
In  matter  of  Zahrt,  861. 
In  re  Bogart,   1020. 

Betts,  70,  71,  466,  467. 

Byrnes,  705. 

Carroll's  Will,  1007. 

Clark,  765. 

Clement's  Estate,  1078. 

Clementi    v.    Jackson,    1185. 

Collins,  273. 

Colvin,  785. 

Davis,  611,  652. 

Duff,  654. 

Eagle    Iron    Works,    776,    777, 

778,  783,  784,  786,  788. 
Empire  State  Bank,  751. 
Estate  of  Gilbert,  201. 
Ewing,  640. 
Gibbs,  1017. 
Howe,  331,  413,  858. 
Igglesden,  861,  890. 
John  &  Cherry  Sts.,  1136. 
Kansas  City  Marble  and  Stone 

Manufacturing  Co.,  417. 
Kerr's   Policy,   1023. 
Lloyd,  640. 
Louisiana    Savings    Bank,    &c., 

Co.,  829. 
Luce,  721. 
Haddock.  827. 
Merchants'  Ins.  Co.,  765. 
Merritt,  908. 
Minor,  656. 
Moss,  776. 
Negus,  67. 
North  American  Gutta  Percha 

Co.,  783. 
Palmer,  640. 
Parker,  914. 
Receivers    of    Globe    Ins.    Co., 

789. 
Rider,  640. 
Sauthoff,  603. 
Second  Ave.   Methodist  Episc. 

Church,  922. 
Silvernail,   899. 
Solomon,  895. 


CASES.  1795 

to  Sections. 

In   re  Thomas.  842. 
Thompson,  831. 
Van  Allen,  789. 
Vilmar,  511. 
Walker,   1124. 
Woolsey,  623. 
Wright,  993. 
Inches  v.  Leonard,  74,  75. 
Indiana  &  I.  C.  R.  Co.  v.  Sprague, 

54,  583. 
Indiana  I.  &  I.  R.  Co.  v.  Swannell, 

635. 
Industrial  Land  Development  Co.  v. 

Post,  61. 
Ingalls  V.  Bond,  623. 

V.  Morgan,  584,  591,  601. 
Inge  V.  Boardman,   165. 
Ingersoll  v.  Mangam,  174,  259,  268,. 
269,  271,  673. 
V.  Roe,  436. 
Ingraham    v.    Disborough,   94,   415, 

416,  418. 
Inloes  V.  Harvey,  1114. 
Innes  v.  Linscheid,  610,  649. 

V.  Purcell,  979,  980. 
Insley  v.  United  States,  1116. 
Insurance  Co.  v.  Addicks,  239. 
V.  Bailey,  143. 
V.  Sampson,  652. 
V.  Shields,  1006. 
Insurance      Company      of      North 

America  v.    Martin,    138. 
International   Bank   of    Chicago    v. 

Wilshire,  305,  306. 
International  Kaolin  Co.  v.  Vause, 

352. 
International  Trust  Co.  v.  Keokuk 
Electric    Street   Railway    & 
Power  Co..  24,  629. 
Investment    Securities    Co.    v.    Ad- 
ams, 83,  704. 
Iowa  Co.  V.  Beeson,  184,  1076. 
Iowa   County  v.   Mineral   Point   R. 

R.,  195,  355. 
Iowa  Loan  &  Trust  Co.  v.  Day,  30. 
V.  King,  170,  451,  455. 
V.  Devall's  Estate,  540,  545,  553, 
576. 


1796  TABLE 

References 
Iowa  Loan  &  Trust  Co.  v.  Haller 
466. 

V.  Kunsch,  1177,  1220,  1223. 

V.  Nehler,  555. 

V.  Schnose,  598.  ' 

V.  Whistler,  545. 
Ireland  v.  Nichols,  765. 

V.  Woolman,  584. 
Ireson  v.  Denn,  141. 
Irish  V.  Antioch  College,  638,  928. 

V.  Clayes,   395. 

V.  Sharp,  94,  107. 
Irnham  v.  Child,  387. 
Irvine  v.  Irvine,  395. 

V.  McRee,  722. 

V.  Perry,  590,  985. 
Irving  V.  DeKay,  440. 
Irving  Sav.  Inst.  v.  Robinson,  618. 
Irwin  v.  Jeffers,  721. 
Isaacs  V.  Baldwin,  64. 

v.  Isaacs,  Z7Z. 
I  shell  V.  Kenyon,  608. 
Ison  V.  Kinnaird,  609. 


J. 


Jack  V.  Naber,  71. 
Jacks   V.   Deering,   397. 
Jackson  v.  Andrews,  365. 

V.  Blodgett,  113,  412. 

v.  Bowen,  85,  943. 

V.  Bradford,  488. 

V.  Bull,  452,  712. 

V.  Cassidy,  314,  323. 

V.  Clark,  607,  937,  951. 

V.  Coffman,  850. 

V.  Colden,  409,  913,  942,  944. 

V.  Condict,  584. 

V.  Cunningham,   1213. 

V.  De  Lancey,  79,  85. 

V.  Dickenson,  367,  712. 

V.  Button,  835. 

V.  Edwards,  664,  667,  880,  881 

V.  Henry,  949. 

V.  Hubble,  488. 

V.  Hudson,  75,  79. 

V.  Hull,   11. 

V.  Johnson,  473. 


OF    CASES, 
are  to  Sections. 

Jackson  v.  King,  679,  718. 

V.  Lawrence,    1036,    1067,    1087. 

V.  Littell,  670. 

V.  Lodge,   1026. 

V.  Losee,  150,  365,  367. 

V.  Lynch,   1224. 

V.  Malin,  399. 

V.  Minkler,  85. 

V.  Moore,  76. 

V.  Newton,  574. 

V.  Packard,  409. 

V.  Parkhurst,  343. 

V.  Payne,  529. 

V.  Pescia,    598. 

V.  Pierce,  79,  85. 

V.  Pratt,  74,  75. 

V.  Ramsay,  712. 

V.  Relf,  1020. 

V.  Richards,  397. 

V.  Sackett,  80. 

V.  Shauber,  74. 

V.  Turner,  932. 

V.  Tuttle,  411. 

V.  Waldron.  488. 

V.  Warren,   626,   627,   656,   680, 
708,   1112. 

V.  Weaver,  967,  973. 

V.  Willard,  412. 

V.  Wood,  74,  75,  78,  79,  80. 

V.  Wright,  488. 

ex  dem.  Klock  v.   Hudson,   75. 

ex  dem.  Horton  v.  Willard,  79. 

ex  dem.  People  v.  Pierce,  75. 

ex  dem.  People  v.  Wood,  75. 
Jackson  &  Sharp  Co.  v.  Burlington 

&  L.  R.  Co.,  89. 
Jacobie  v.  Mickle,  211,  241. 
Jacobs  V.  Gibson,  762,  792,  793,  795, 
796,  806. 

V.  Snyder,  628. 
Jacobs  V.  Swift,  43. 

V.  Turpin,  556. 
Jacobson  v.  Smith,  623. 
Jacques  v.  Elser,  417. 
Jaffray  v.  Brown,  370,  379. 
Jaggar  v.  Plunkett,   1057. 
Jakway  v.  Jenison,  456. 
Jamaica  Sav.  Bnk.  v.  Howard,  516. 


TABLE 
References 
James  v.  Eion,  1099. 

V.  Brainard-Jackson  &  Co.,  62, 
149. 

V.  Brown,  602. 

V.  Fields.   155. 

V.  Fisk,  37,  50. 

V.  Hays,  422. 

V.  Hubbard,  587,  601,  855,  1209. 

V.  Johnson,  1029,  1174. 

V.  Kirkpatrick,  259. 

V.  McKernon,   387. 

V.  Morey,    415,    416.    418,    493, 
1050. 

V.  Oades,  1038,  1042. 

V.  Roberts,  436. 

T.  Stull,  955. 

V.  Thomas,  56,  58. 

V.  Webb,  640. 
James    H.    Robertson    Mfg.    Co.   v. 

Chambers,  624. 
Jamison  v.  Auxier,  476. 

V.  Perry,  74. 
Janinski  v.  Heidelberg,  158,  267. 
Jaques  v.  Weeks,  1029,  1036. 
Jarechi    v.     Philharmonic     Society, 

490.  491,  716. 
Jarman  v.   Wiswall,   220,  252,  253, 

7ZZ,  742,  743. 
Jarmulowsky    v.    Rosenbloom,    762, 

771. 
Jarratt  v.  McDaniel,  404. 
Jarvis  v.  Albro,  75,  79,  81. 

V.  American      Forcite      Power 
Mfg.  Co.,  381. 

V.  Chapin,  289. 

V.  Butcher,  330. 

V.  McQuaide.  762. 

V.  Palmer,  71. 

V.  Woodruff.  1247. 
Jason  V.  Eyres,  1036. 
Jay  V.  Ensign,  261. 
Jaycox  V.  Smith,  374. 
Jayne  v.  Hughes,  1256. 
Jefferson  v.  Coleman,  146,  963,  967. 

V.  Edrington,  384. 
Jefferson  County  Bnk.  v.  Hummel, 

516. 
Jeffres  v.  Cochrane,  367. 


OF   CASES.  1797 

are  to  Sections. 

Jehle  V.  Brooks,  516,  518. 

Jellison  v.  Holloran,  658,  683,  686, 

701. 
Jencks  v.  Alexander,  574,  640,  933, 

934. 
Jeneson  v.  Jeneson.  146,  192. 
Jenkins  v.  Bishop,  746. 

V.  Continental     Ins.     Co.,     409, 
1105. 

V.  Eldredge,  908. 

V.  Eldridge,  1215,  1237, 

V.  Freyer,  584,  855. 

V.  Gething,  490. 

V.  Hinman,  762,  763,  805. 

V.  Smith,    101. 

V.  Wilde,  779. 
Jenkins  Land  &  Live  Stock  Co.  v. 

Atwood,  662. 
Jenkinson  v.  Ewing,  392,  500. 
Jenks   V.   Alexander,  573. 

V.  Quinn,  584. 
Jenner  v.  Tracy,  83. 
Jenness  v.  Robinson,  1186. 
Jennings  v.  Hare,  1002. 

V.  Jennings,  537. 

V.  Jordan,  1208. 

V.  Mackay,  1010. 

V.  Moon,  584. 

V.  Todd,  115. 
Jerome  v.  McCarter,  209.  211. 
Jesson  V.  Texas  Land  &  L.  Co.,  319. 
Jessop  V.  City  Bank  of  Racine,  741. 
Jester  v.  Sterling,  56,  244,  467. 
Jesus  College  v.  Bloom,  84. 
Jewell  V.  Harrington,  459. 

V.  West  Orange.  97. 
Jewett  V.  Draper,  1145. 

V.  Hamlin,  392. 

V.  Tomlinson,   143. 
Jillson  V.  Hill,  53. 
Jocelyn  v.  White,  340. 
John  V.  Freeman,  201. 

V.  Hunt,   161. 
John  &  Cherry  Sts.,  In  re,  1138. 
Johnes  v.  Claughton,  825. 

V.  Cutwater,  132. 
Johns  V.  Lantz,  81. 

V.  Wilson,  736,  743,   750. 


1798  TABLE    OF 

References  are 
Johnson  v.  Atchison,  1093. 
V.  Baker,  713. 
V.  Bartlett,  662,  1247. 
V.  Beard,  115. 
V.  BIydenburgh,  349. 
V.  Britton,  67. 
V.  Brown,  101,  102,  327. 
V.  Bush,  412. 
V.  Cain,  44. 
V.  Camp,  177. 
V.  Candage,    17,    93,    101,    1102, 

1113,  1208. 
V.  Carpenter,  417. 
V.  Clarke,  294. 
V.  Clegg,  1007. 
V.  Cobleigh,  892. 
V.  Cocks,  555,  640,  983. 
V.  Colby,  537,  552,  628. 
V.  Corbett,   748. 
V.  Cornett,   114. 
V.  Day,  951,  952. 
V.  Donnell,   966,   968,  977. 
V.  Donovan,  144. 
V.  Everett,   508. 
V.  Fitzhugh,  173. 
V.  Foster,  138. 
V.  Friant,  150. 
V.  Gere,  496,  500. 
V.  Glenn,  310,  313,  979. 
V.  Colder,   1234. 
V.  Graham  Bros.  Co.,  406. 
V.  Gray,  1042. 
V.  Handage,  1179. 
V.  Harmon,  179,  180,  1056,  1191, 

1244. 
V.  Harrison,  1139. 
V.  Hart,   197,  201. 
V.  Holdsworth,    179. 
V.  Hosford,   1198,   1235. 
V.  Irvin,   367. 
V.  Irwin,  58. 
V.  Johnson,   322,  324,   345,   352, 

1172. 
V.  Klegg,   1003. 
V.  Leonards,  93. 
V.  Loftin,  1214. 
V.  Masters,   525. 
V.  Meyer,  523,  543. 


CASES. 
to  Sections. 

Johnson  v.  Monell,  748. 

V.  Olcott,  478. 

V.  Cutwater,  389. 

V.  Parmaly,  453,  459. 

V.  Payne,  517,  1185. 

V.  Prosperity     L.     &     Building 
Asso.,  1038,   1145. 

V.  Richmond    Beach    Improve- 
ment Co.,   158,  628. 

V.  Robertson,  109,  167,  1170. 

V.  San    Francisco    Sav.    Union, 
137. 

V.  Shepard,  220,   253. 

V.  Sherman,  967,    1027. 

V.  Sherman  Co.  Irrig.  W.  Pow- 
er Imp.  Co.,  683. 

V.  Snell,   1094. 

V.  Stimmel,  28. 

V.  Tucker,  798,  799. 

V.  Valido  Marble  Co.,  856. 

V.  Van  Velsor,  328,  527. 

V.  Walter,   114. 

V.  White,   146,  799. 

V.  Williams,  479,  584,  1209. 

V.  Wilson,   887. 

V.  Woods,  917. 

V.  Zink,  112. 
Johnson's  Ex'rs  v.  Wiseman,  491. 
Johnston  v.  Donvan,  146,  167. 

V.  Gray,  1029. 

V.  McDufifee,  146. 

V.  San  Francisco   Savings  Un- 
ion, 158,  161,  268. 

v.  Winter,  259. 
Joiner  v.  Enos,  564. 
Jones  V.  Adams,  717. 

v.  Benedict,  473. 

V.  Burden,  680,  708. 

V.  Clark,  177. 

V.  Cleary,  540. 

V.  Conde,   11. 

V.  Dannenberg,  406. 

V.  Diederich,  439. 

V.  Dougherty,   799. 

V.  Dow,  603. 

V.  Dutch,   1105,   1184,  1189. 

V.  Edwards,  842. 

V.  Franks,  305. 


TABLE    OF 
References  are 

Jones  V.  Gardner,  567. 

V.  Gillett,   1029. 

V.  Hagler,    127,    129,    556,    609, 
620,  941,  961. 

V.  Hardesty,  418. 

V.  Harstock,   184,  185. 

V.  Hooper,  722,  723. 

V.  Insurance  Co.,  461. 

V.  Jones,   389. 

V.  Keen,  828. 

V.  Lake,  683. 

V.  Lapham,    138. 

V.  Lawrence,  50,  54,  327. 

V.  Louisville    Savings    Loan    & 
Building  Co.,  571. 

V.  Mack,  109. 

V.  Matthie,  945. 

V.  McNarrin,   374. 

V.  Merchants'  Bank  of  Albany, 
80. 

V.  Merritt,  233. 

V.  Miller,  618. 

V.  Moore,  81. 

V.  Myrick,  584. 

V.  New   York    Guarantee    &   L 
Co.,   1174. 

V.  Null,  276. 

V.  Phelps,  1001.  1002. 

V.  Planters'  Bank,  1141. 

V.  Richardson,  1234. 

V.  Robb,  367,  380. 

V.  Schall,  820. 

V.  Shepard,  852. 

V.  Smith,  416,  456. 

V.  Standiferd,  685. 

V.  Stanton.  422. 

V.  Stienbergh,  223,  229,  253,  743. 

V.  St.  John,  484. 

V.  Stoddart,   1006. 

V.  Thomas,  716,  717. 

V.  Van  Doren,  1173. 

V.  Williams,  18,  74,  75,  556,  565, 
656. 

V.  Winans,  183. 
Jopling  V.  Walton,  1220. 
Jordan  v.  Hamilton  County  Bank, 
1209. 

V.  Katz.  1167. 


CASES.  1799 

to  Sections. 

Jordan  v.   Poillon,  676. 

V.  Sayer,   137,  704. 

V.  Smith,  392. 

V.  Van  Epps,  351,  485,  721. 
Jordon  v.  Cheney,  101,  304. 
Joseph  V.  Decatur  Land,  I.  &  F.  Co., 

425,   454. 
Joslin   V.    Williams,    136,   213,   495, 

828. 
Joslyn  V.  Schwend,  381. 

V.  Wyman,  1174,  1192,  1195. 
Josselyn  v.  Edwards,  112. 
Jouchert  v.  Johnson,  335,  438. 
Joy  V.  Adams,  80. 
Judd  V.  O'Brien,  928.  930.  932. 
Judkins  v.  Woodman,  302. 
Judson  V.  Dada,  481,  747. 

V.  Emanuel,    179. 
Juilliard  v.  Greenman,  1071. 
Julian  V.  Bell,   1116. 
Julien  V.  Lalor,  172. 

V.  Model   Building  L.  &  Invst. 
Asso.,  62. 
Jumel  V.  Jumel,  242,  508,  592,  597. 
Juniata   Building  &  Loan  Asso.  v. 
Mixell,  515. 


K. 


Kaelbe  v.  Goebbel,  583. 
Kalscheuer    v.    Upton,    1077,    1085, 

1135. 
Kamena    v.    Huelbig,   94,    106,    134, 

416. 
Kammann  v.  Barton,  914. 
Kamp  v.  Kamp,  267. 
Kanawha  Coal  Co.  v.  Kanawha  &c. 

Coal  Co.,  1218. 
Kane  v.  Bloodgood,  7Z. 
V.  Herrington,   73. 
V.  Jonasen,  567. 
V.  Jonason,  541. 
V.  Kane,  395. 
Kansas  City  Land  Company  v.  Hill, 

645. 
Kansas     City     Marble     and     Stone 
Manufacturing  Co.,   In   re, 
417. 


1800  TABLE    OF    CASES. 

References  are  to  Sections. 
Kansas  Manuf.  Co.  v.  Gandy,  403.       Kelly  v.  Houts.  1057, 
Karcher  v.   Gans,  692. 
Karl  V.  Conner,  179. 
Kaston  v.   Paxton,  719. 
Kattenstroth  v.  Astor  Bank,  820. 
Kauffman  v.  Ellis,  880. 

V.  Peacock,  843,  845,  846,   879, 


Kay  V.  Churchill,  401. 

V.  Whittaker,  137,  155,  191. 
Kaye  v.  Cunningham,  825. 
Kearney  v.  Post,  683. 
Keating  v.  Price,  71,  466. 
Keator  v.  Ulster  &  Delaware  Plank 

Road  Co.,  511. 
Kebabian  v.    Shinkle,   52,   546,  620, 

645,  1128. 
Keeble  v.  McLemore,  663. 
Keech  v.  Hall,  1128. 
Keel  V.  Sparker,  1209. 
•Keeler  v.  Keeler,  591. 

V.  McNeirney,  213,  351. 
Keene  v.  Munn,  584. 
Keene  Five  Cent  Sav.  Bnk.  v.  John- 
son, 661. 
Keener  v.  Crull,  81. 
Kehm  v.  Mott,  385. 
Keil  V.  Healey,  1251. 
Keith  V.  Browning,  944. 

V.  McLaughlin,  38. 
Kelgour  v.  Wood,  147,  148,  182. 
Kellar  v.  Sinton,  80. 
Kelleran  v.  Brown,  1029. 
Kelley  v.  Israel,  539. 

V.  Thompson,  1029. 

V.  Whitney,  478. 
Kellogg  V.  Ames,  417. 

V.  Dennis,  921. 

V.  Dickinson,  75. 

V.  Howell,    564,    619,   620,    622, 
625,  640,  647. 

V.  Rand,  584,  594,  596,  1209. 

V.  Robinson,  1145. 

V.  Smith,  206. 
Kelly  V.  Bogardus,  38. 

V.  Countryman,   259. 

V.  Culver's  Adm'r.,  380. 

V.  Hart,  7Z. 


V.  McGlynn,  28. 

V.  Payne,  50,  579. 

V.  Searing,    503,    521,   523,    525. 

V.  Stanton,  797. 
Kels  V.  West,  584. 
Kelsey  v.  Collins,  466. 
Kelso  V.  Norton,  704,  1185,  1234. 
Kemerer  v.  Bournes,  203,  327. 
Kemp  V.  Hein,  640. 

V.  Mitchell,   1220. 

V.  Moir,  357,  535. 
Kendall  v.  Hodgins,  1029. 

V.  Niebuhr,  478,  479,  594. 

V.  Treadwell.  966,  969,  975. 

V.  Washburn,  524. 

V.  Woodrufif,  478,  479. 
Kenicott  v.  Supervisors  of  Wayne 

County,  416. 
Kenmare  Hard  Coal,  Brick  &  Tile 

Co.  V.  Riley,  1145. 
Kennebec,  &  P.  R   Co.  v.  Portland, 

&  K.  R.  Co.,  1220,  1234. 
Kennedy  v.  Borie,  697,  700. 

V.  Bridgman,  644,  651. 

V.  Brown,  459,  888. 

V.  Hammond,  327. 

V.  Indianapolis  C.  &  L.  R.  Co., 
787,  829. 

V.  Knight,  80,  410. 

V.  Milwaukee  &  St.  P.  R.  Co., 
294. 

V.  Moore,  206. 

V.  The  New  York  Life  Insur- 
ance   &     Trust     Company, 
263. 
Kenney  v.  Apgar,  833. 

v.  Vanhorne,  1021. 
Kent  V.  Laflin,  1087. 

V.  Manchester,  423. 

V.  Melius,  843,  850. 

V.  Popham,  209,  210. 
Kenyon  v.  Shreck,  179.  1216. 
Keogh  v.  McManus,  827. 
Kepley  v.  Jansen,  147,  516. 
Kerbaugh  v.  Nagen,  50. 

v.  Nugent,  64. 
Kerby  v.  Wade,  443. 


TABLE    OF    CASES. 
References  are  to  Sections. 


1801 


Kerchner  v.  Fairley,   198,  792,  796. 
Kem  V.  Hazlerigg,  367. 
Kerndt  v.  Porterfield,  1256. 
Kerr  v.  Galloway,  938. 

V.  Gilmore,    1029. 

V.  McCreary,  683. 
Kerr's  Policy,  In  re,  1023. 
Kerrick  v.  Saffery,  138,  172. 
Kerse  v.  Miller,  1127. 
Kershaw  v.  Dyer,  290,  665. 

V.  Thompson,  177,  722,  723,  725, 
730. 
Kessinger    v.    Whittaker,    723,    725, 

726,  727. 
Ketcham  v.  Brooks,  244. 
Ketchell  v.  Burns,  254. 
Ketckum  v.  Clark,  519. 

V.  Jauncey,  67. 

V.  Shaw,  155. 
Ketley's  Case,  395. 
Key  V.  Jennings,  464,  500. 
Keyes  v.    Sherwood,  573. 

V.  Wood,  93,  103,  115. 
Keys  V.  Lardner,  535. 
Keystone   Bridge   Co.  v.  Summers, 

294. 
Kezer  v.  Clifford,  1172. 
Kidd  V.  Conway,  233. 
Kieffer  v.  Ehler,  368. 
Kiernan  v.  Blackwell,  161. 

V.  Jersey  City,  692. 
Kiersted  v.  Avery,  1209. 
Kilborn  V.  Robbins,  584,  1180,  1209, 

1212. 
Kilburn  v.  Woodworth,  35. 
Kilgore  V.  Hair,  768,  782. 
Kilgour  V.   Scott,  683. 
Killops  V.  Stephens,  522. 
Kilmer  v.  Gallagher,  580. 

V.  Smith,  241,  244. 
Kilpatrick    v.    Germania    Life    Ins. 
Co..   61,   62. 

V.  Henson,  382. 
Kimball    v.    Blaisdell,    452,    488. 

V.  Darling,  302. 

V.  Myers,  465. 
Kimbrell  v.  Rogers,  155. 
Kime  v.  Jesse,  399. 


Kimmel  v.  Schwartz,  81. 

V.  Willard,  327. 
Kincaid  v.  Archibald,  81. 
Kindberg  v.  Freeman,  150,  376. 
King  V.  Adderly,  1141. 

V.  Andrews,  473. 

V.  Baldwin,  1190. 

V.  Bardeau,  669. 

V.  Bowman,   172. 

V.  Briarwood  Land  Co.,  476. 

V.  Bronson,  639,  640. 

V.  Duntz,  158,  912,  917,  921,  922, 
924,  1243. 

V.  Harrington,  345. 

V.  Kerr,  498. 

V.  Kincey,   1029. 

V.  King,  1061,  1151. 

V.  Martin,    139. 

V.  McCully,  712. 

V.  McVicker,   166,   167,  602. 

V.  Meighen,  1028. 

V.  Merchants'     Exchange     Co., 
101. 

V.  Morford,  71,  466. 

V.  Morris,  639,  640,  650. 

V.  Newman,  1036. 

V.  Ohio  &  M.  Ry.  Co.,  787. 

V.  Piatt,  564,  575,  624,  640,  645, 
654. 

V.  Safford,  220. 

V.  Smith,  302. 

V.  Sullivan,  750. 

V.  The     Merchants'     Exchange 
Co.,  127,  207. 

V.  West,  858,  901. 

V.  Whiteley,  242,  246,  247,  249, 
481. 
King's  Ex'rs  v.  Coulder's  Ex'rs,  7Z. 
Kingbury  v.  Buckner,  1129.  1208. 
Kingman  v.  Harmon,  294,  299. 

v.  Pierce,   1136. 
Kingsbury  v.  Buckner,  1208. 
Kingsland    v.    Chetwood,   901,   902, 
910. 

V.  Fuller,  667. 

V.  Stokes,  343. 
Kinkead  v.  Peet,  1189,  1191,  1206. 
Kinloch  v.  Mordecai.  227. 


1802  TABLE    OF 

References  are 
Kinna  v.  Smith,  92,  120,  122. 
Kinner  v.  Walsh,  839. 
Kinney  v.  McLeod,  36. 
Kinsley  v.  Abbott,  98. 

V.  Ames,  310. 

V.  Scott,  484. 
Kinsman  v.  Kinsman,  380. 

V.  Loomis,  488. 

V.  Rouse,  1251. 
Kip  V.  Hirsh,  172. 
Kipp  V.  Brandt,   137,   145,  147,   152, 
190. 

V.  Delamater,  334. 

V.  Hanna,  815. 
Kirber  v.  Moody.  683. 

V.  Circuit    Court    of    McCook 
County,  622. 

V.  Fitzgerald,  897. 

V.  Moody,  691. 

V.  Ramsey,  640. 

V.  Runals,  13. 
Kircher  v.  Schalk,  302. 
Kirk  V.  Van  Petten,  50. 
Kirkaldie  v.  Larrabee,  488. 
Kirkendall  v.  Weatherley,   1038. 
Kirkham  v.  Dupont,   1065,   1105. 
Kirkpatrick  v.  Lewis,  928. 

V.  McMillen,  434. 

V.  Smith,  1178,  1203. 
Kirsch  v.  Tozier,  293. 
Kissel  V.  Eaton,  155. 
Kitchen  v.  Lee,  395,  396. 
Kitchens  v.  Jones,  839. 
Kittel  V.  Schmieder,  436. 
Kittle  V.  Van  Dyck,   105,   148,   155, 

187,  201,  389. 
Kittler  v.  Studabaker,  417. 
Kizer  V.  Caufield.  352,  482. 
Klapworth  v.  Dressier,  242,  744. 
Klein  v.  Glass,  639,  640. 

V.  Isaacs,  459. 

V.  Vogel,  640. 
Kleinsorge  v.  Kleinsorge,  43. 
Klinck  V.  Price,  1029. 
Kline  v.  Beebe,  395,  396. 

V.  Camp,  656. 

V.  McGuckin,  140. 

V.  Vogel,  640,  1177,  1220,  1224. 


CASES. 
to  Sections. 

Kling  V.  Ballentine,  879,   1126. 
Klock  V.   Cronkhite,  712,  915,  932, 
934,  948. 
V.  Walter,  1029. 
Kloepping  v.   Stellmacher,  640. 
Klokke  V.  Escailler,  996,   1003. 
Knapp  V.   Burnham,  445,   579,   581, 
582. 
V.  Troy  &  B.  R.  Co.,  127. 
Knickerbacker    v.    Eggleston,    537, 

593. 
Knickerbocker  Life  Ins.  Co.  v.  Nel- 
son,  19,  250,   255,   461. 
V.  Hill,  411,  513,  774. 
Knickerbocker  T.   Co.  v.   Oneonta, 

C.  &  R.  S.  Ry.  Co.,  768. 
Knight  V.  Heafer,   1010. 
V.  K.,  87,  88. 
V.  Moloney,  665,  674. 
V.  Wright,  394. 
Knoblock  v.  Zschwetzke,  746. 
Knollenberg  v.  Nixon,  468,  583. 
Knowles  v.  Erwin,  242. 

V.  Lawton,  146,  589,  1050. 

V.  Rablin,   179,  335,   1105,   1113, 

1177,  1191. 
V.  Sullivan,  843,  892. 
Knowlton    v.    Walker,    1029,    1031. 

1036,  1247,   1249. 
Knox  V.  Armstead,  1052,  1055,  1067. 

V.  Galligan,  80,  92,  412. 
Koch  V.  Briggs,  1,  37,  345,  967,  1027, 
1028. 
V.  Purcell,    188,   209,    612,    835, 
862. 
Koechl    V.    Gate    Development   Co., 

619,  632. 
Koehler  v.  Ball,  614,  660. 
Koerner  v.  Gauss,  155,  610. 

V.  Willamette  Iron  Works,  976. 
Koester  v.  Burke,  102. 
Koger  V.  Weakly,  193,  309. 
Kohlheim   v.   Harrison,    1249,    1256. 
Kohli  V.  Hall,  280. 
Kolle    V.     Clausheide,     1215,     1236, 

1237. 
Koon  V.  Hollingsworth,  985. 
Koons  V.  Vauconsaut,  406. 


TABLE    OF    CASES. 
Referetices  are  to  Sections. 


1803 


Kopmeier  v.  O'Xeil,  547,  552. 
Kopper  V.   Dyer,    1156,    1177,   1220, 

1237. 
Kornegay  v.  Spicer,  945. 
Kortright  v.  Cady,  468,  1020,  1185. 

V.  Smith,  390. 
Koster  v.  Welch.  401. 
Kraemer  v.  Adelsberger,  120. 
Kramer  v.  Farmers'  and  Mechanics' 

Bank  of  Steubenville,  67. 
Kransz  v.  Uedelhofen,  466. 
Krebs  v.  Carpenter,  467. 
Kreidler  v.  Hyde,  750. 
Kreitzer  v.  Crovatt,  609. 
Kremer  v.  Twaits,  663. 
Kroehle  v.  Ravitch,  817. 
Krueger  v.  Ferry,  597. 
Krutsinger  v.  Brown,  214. 
Krutz  V.  Robbins,  294. 
Kuhnen  v.  Parker,  447. 
Kundolf  V.  Thalheimer,  21. 
Kuntz  V.  Temple,   1141. 
Kuntzman  v.  Smith,  1106. 
Kunz,  State  ex  rel.  v.  Campbell,  612, 

657. 
Kursheedt  v.  Union  Dime  Savings 

Inst,  155. 
Kurtz  V.  Ogden  Canyon  Sanitarium 

Co.,  1006. 
V.  Sponable,   115,  Zi7,   1003. 
Kutchum  V.  Clark,  900. 
Kyger  v.  Ryley,  115,  960. 
Kyle  V.  Wells,  81. 

L. 

Laberge  v.  Chauvin,  115. 
Lacey  v.  Lacey,  645,  1220. 
Lackas  v.  Bahl,  714. 
Laclede  Bank  v.  Keeler,  944. 
Lacoss  V.  Keegan,  65,  752. 
Ladd  V.  Harvey,  799. 

V.  Mason,  382. 

V.  Putnam,  420. 

V.  Wiggin,  395. 
La  Farge  v.  Van  Wagenen,  607,  779. 
La  Farge  Fire  Ins.  Co.  v.  Bell,  684. 
Laight  v.  Pell,  545. 


Lainer  v.   Smith,   156. 
Laing  v.  Byrne,  250,  251,  748. 

v.  Titus,  509. 
Lake  v.  Thomas,  1256. 
Lalane  v.  Payne,  17. 
Lallance  v.  Fisher,  556,  618,  640,  641. 
Lalor  v.  McCarthy,  639. 
Lamb   v.   Jeffrey,    1105,   1197,    1222, 
1243. 
V.  Montague,   1108,    1126,   1127, 

1133,  1172,  1210. 
V.  Richards,  1087. 
V.  Scullen,  67. 
V.  Tucker,  244. 
V.  West,  1200. 
Lambert  v.  Hyers,  127,  166. 

v.  Livingston,  909. 
Lambertville     Nat.     Bank    v.     Mc- 
Cready   Bag  &   Paper  Co., 
162,  209,  211,  332,  1105. 
Lamerson  v.  Marvin,  570,  574,  577, 

717,  914. 
Lamoille  County  Bank  v.  Bingham, 

411. 
Lamont  v.  Cheshire,   150,   151,   189, 

364,  365,  375.  376. 
L'Amoreux  v.  Vandeuburg,  419,  456. 
Lampton  v.  Usher's  Heirs,  721. 
Lamson  v.  Bohrer,  628. 
V.  Drake,  1160. 
v.  Sutherland,  1175. 
Lanahan  v.  Lawton,  12,  309. 
Lancaster  v.  Eve,  714. 
Lancaster    Co.    National    Bank    v. 

Moore,  397. 
Lance  v.  Gorman,  1087. 
Land  v.  May,  55. 
Land  Mortgage  Invest.  &  A.  Co.  v. 

Vinson,  294. 
Land  Title  &  Trust  Co.  v.  Kellogg, 

792,  793. 
Landale  v.  McLaren,  127. 
Landell's  Appeal,  683.  886. 
Lander  v.   Meserole,  692. 
Landers  v.  Sanders,  1247. 
Landon  v.  Burke,  160. 
v.  Townsend,   172. 
Landreaux  v.  Lougue,  683,  687. 


1804  TABLE    OF 

References  are 

Lane  v.  Allen,  480. 

V.  Conger,  577. 

V.  Erskine,  137,  138,  161. 

V.  Hitchcock,  302. 

V.  Holmes,  853. 

V.  King,  717,  950,  1128. 

V.  Lessee,  409. 

V.  Shears,  1029. 

V.  Sleeper,  115. 
Langdon  v.  Bowen,  473. 

V.  Buell,  114. 

V.  Keith,  93. 

V.  Paul.  346. 
Lange  v.  Jones,  213,  482. 
Langley  v.  Andrews,  94,  389,  1003. 
Langmaack  v.  Keith,  913. 
Langton  v.  Langton,  211,  816. 
Langworthy  v.  Smith,  71. 
Lanier  v.  Mcintosh.  683,  692,  704. 

V.  Smith,  212,  486. 
Lannay  v.  Wilson,  93,  203. 
Lanoue  v.  McKinnon,  359,  1009. 
Lanoy  v.  Athol,  609. 
Lansdale  v.  Brashar,  81. 
Lansdown  v.  Elderton,  624,  652,  664, 

666. 
Lansing  v.  Capron,  327. 

V.  Clapp,  875,  876. 

V.  Goelet,   14,   17,  50,   564,  579, 
736,  963,  964.  971. 

V.  McPherson,    623,    624,    626, 
637,  640,  G-M. 

V.  Woodworth,   1174. 
Lanson  v.  Drake,  1127. 
Lantry  v.  French,  583. 
Lantz  V.  Worthington,  607. 
Lanz  V.  Trout,  983. 
Lapham  v.  Ives,  808. 
Lappen  v.  Gill,  242. 
Lapping  v.  Duffy,  392. 
Largan  v.  Bowen,  830. 
Large  v.  Van  Doren,  127,  207,  988, 

995. 
Larimer  v.  Clemmer,  198,  220. 
Lariverre  v.   Raines,  952. 
Larkin  v.  Brouty,  573,  627. 

V.  Misland,  847,  885. 
Larremore  v.  Squires,  482. 


CASES. 
to  Sections. 

Lasere  v.  Rochereau,  137. 
Lash  V.   McCormick,  943. 
Lashbrooks  v.  Hatheway,  345. 
La    Societe    Francaise    v.    District 

Court.  810. 
Lassall  v.  Rati,  424. 
Lassell  v.  Reed,  490. 
Lasselle  v.  Barnett,  456. 
Lassere  v.  Rochereau,  1251. 
Las  Vegas  R.  &  Power  Co.  v.  Trust 

Co.,  645. 
Latham  v.  McCann,  448. 
Lathrop  v.   Carrol,  78. 

V.  Ferguson,  712. 

V.  Godfrey,  412,  423,  424,  440, 
442,   443,   448. 

V.  Heacock,  157,  267. 

V.  Nelson,  680,  681. 

V.  Tracy,  944. 
Latimer  v.  Moore,  769. 
Latourette  v.  Gardner,  478. 
Latta  V.  Tutton,  751. 

V.  Wiley,  374,   380. 
Lattimore  v.  Harsen.  71,  466. 
Latton  V.  McCarty,  476. 
Lauf  V.  Cahill,  417. 
Laughery  v.  McLean,  422,  464,  500. 
Laughlin  v.  Curts,  1208. 

V.  Heer,  831. 

V.  Hibben,  628. 
Laurent  v.  Lanning.  339. 
Lauriat  v.  Stratton,   1105. 
Lausman  v.  Drahos,  595. 
Lauterjung     v.     Chicago     Title     & 

Trustee  Co..  58,  62. 
Laverty  v.  Moore,  683,  710. 
Law  V.  Bagwell,  168. 

V.  Citizen's  Bank,  1116. 

V.  McDonald,  985.  986. 
Lawder  v.  Larkin,  395. 
Lawler  v.   Densmore,  381. 
Lawrence  v.   Beaubien,  433. 

V.  Delano,    14,   682. 

V.  Elmendorf,    125. 

V.  Farley,  745. 

V.  Farmers'  Loan  &  Trust  Co., 
912,  913.  922.  938. 

V.  Fellows,  751. 


TABLE 
References 

Lawrence  v.  Fox,  242,  246,  250,  750. 

V.  Kemp,  491. 

V.  Lawrence,  96,  206. 

V.  Towle,  748. 
Lawrence  Savings  Bank  v.  Stevens, 

485. 
Lawson  v.  Barron,  54,  468, 

V.  Lovejoy,  395. 
Lawton  v.  Green,  946. 

V.  Lawton,  88. 

V.  Perry,  734. 

V.  Sager,    1019. 

V.  Salmon,  490. 
Lay  V.  Gibbons,  576. 
Laylin  v.  Knox,  402,  1129. 
Layman  v.  Shultz,  232. 

V.  Whiting,  954,  955,  958,  960, 
Lazarus  v.  Caesar,  940. 
Lea  V.  Fabbri,  743. 
Leahy  v.  Arthur,  803. 
Leaper  v.  Lyon,  121. 
Learned   v.    Foster,    146. 

V.  Walton,    302. 
Leary  v.  Shaffer,  156. 
Leavenworth  Lodge,  No.  2,  L  O.  O. 

F.,   V.    Byers,   700. 
Leavitt   v.    Bell,   516. 

V.  Cruger,  157,  267. 

V.  Palmer,  412. 

V.  Pell,    133. 

V.  Tylee,  377. 
Leaycroft  v.  Fowler,  510. 
Lebanon   Savings   Bank  v.   Hollen- 
beck,  375. 

V.  Walterman,  482. 
Lebus  v.  Slade,  535. 
Lechmere  v.  Brasier,  668. 
Lechner  v.  Green,  792. 
Ledyard   v.    Phillips,   717. 

v.  Ten   Eyck,   703. 
Lee  V.  Evans,  71. 

V.  Homer,  946. 

V.  Kirkpatrick,  94,  417. 

V.  Parker,  212,  351. 

V.  Perry,  81. 

V.  Pindle,  982. 

V.  Porter,  496. 


OF    CASES.  1805 

are  to  Sections. 

Lee  v.  Stone,  1191,  1192,  1197,  1201. 

V.  West   Jersey   Land   Co.,    54, 
70,  466. 
Leech   v.   Hillsman,  683. 
Leeds  v.  Amherst,  69. 

V.  Gifford,  966,  790. 
Leef  V.  Goodwin,  473. 
Leet  V.  Armbruster,  683,  1177. 

V.  McMaster,  928,  937. 
Lefebvre  v.  Dutruit,  436,  438,  439. 
Lefevre  v.  Laraway,  609,  618,  620, 
624,  626,  627,  640,  647,  653. 
LeflFerts  v.  Harris,  262. 
Legal  Tender  Cases,  107L 
Leger  v.    Bonnaffe,  413. 
Legge  v.  Croaker,  496. 
Leggett  v.  McCarty,  422,  495. 

V.  McClelland,   160. 

V.  Mut.  Life  Ins.  Co.,  163,  166, 
167,  170. 
Lego  v.  Medley,  178. 
LeGuen  v.  Gouverneur,  14. 
Lehman  v.  Collins,  1220,  1234. 

V.  Comer,   1003. 

V.  McQueen,   106. 

V.  Moore,  1115. 

V.  Tammany,  533. 
Lehrenkrauss  v.  Bonnell,  403. 
Leighton  v.  Orr,  435. 
Leiper  v.   Erwin,   73. 
Leitch  v.  Wells,  365,  366,  368,  371. 
Leitzbach  v.  Jackman,  516. 
Leland  v.  Colliver,  517. 

v.  Hathorne,  31. 
Leman  v.  Newnham,  76. 
Lemar  v.  Miles,  490. 
L'Engle  v.  L'Engle,  1003,  1007. 
Lenihan  v.  Hamann,   150,   172,  173. 
Lennell  v.  Lyford,   1029. 
Lennig's  Estate,  239,  750. 
Lennon  v.  Porter,  200. 
Lent  v.  Morrill,  80,  488. 

V.  Padelford,   344. 

V.  Shear,  80,  82. 
Lents  V.  Craig,  539,  559,  624,  637. 
Lenox  v.  Reed,  137,  146. 


1806  TABLE    OF 

References  are 
Leonard  v.  Adm'r  of  Villars,  155. 

V.  Groome,  182. 

V.  Morris,    161,    162,    221,    227, 
234,  236,  253,  258,  742,  922. 

V.  Villars,    1134. 

V.  Wood,    703. 
Leopold  V.  Hallheimer,  63,  70. 
Lepper  v.  Conradt,  407. 
Lerch  v.  Hill,  547. 
Lerude,  Succession  of,  848. 
Lesley  v.   Nones,  73. 
Leslie  v.   Merrick,  400. 

V.  Saratoga   Brewing   Co.,  665. 
Lespinasse  v.  Bell,  781. 
Lessee  of  Dilworth  v.   Sinderling, 

53. 
Lester  v.  Barron,  459. 
Levanworth  Lodge,  No.  2,  L  O.  O. 

F.  V.  Byers,  683. 
Levenson  v.  Elson,  797. 
Leveridge  v.  Marsh,   183. 
Levert  v.   Redwood,  346,  579. 
Levin  v.  Gates,  693. 
Leviston  v.  Swan,  225,  743. 
Levy  V.   Brush,  609. 

V.  Haake,  28. 

V.  Hinz,  540,  545. 

V.  Kon,    380. 

V.  Lake,  966,  973. 

V.  Levy,   170. 
Lewine  v.  Gerardo,  263. 
Lewis  V.  Barksdale,  1251. 

v.  Conover,  392. 

V.  Day,   239. 

V.  Duane,  38,  917,  942,  949,  1162, 
1185. 

V.  Elrod,  149. 

V.  Jones,  490. 

v.  Lewis,    43. 

V.  McBride,  1025,  1082,  1175. 

V.  Mew,   1114. 

v.  Nangle,   163, 

V.  Payn,  399. 

V.  Ritchey,  67,  361. 

V.  Schwem,  967,  973. 

V.  Smith,  14,  15.  121,  156,  209, 
212.  213.  351,  353,  484,  487, 
682,  683,  861,  1055. 


CASES. 

to  Sections. 

Lewis  v.  Starke,  90. 

v.  Sutton,  1006. 

v.  Zouche,  780. 
L'Hote  &  Co.  v.  Fulham,  715. 
Libby  v.  Rosenkrans,  622,  760. 
Liddell  &  Co.  v.  Carson,  944. 
Lietze  v.  Claybaugh,  203. 
Life  Association  v.  Dale,  1010. 
Lifford  V.  Ricketts,   1023. 
Lilienthal  v.   Champion,  460. 
Lillie  V.  Shaw,   1147. 
Lilly   V.    Dunn.    1233. 

V.  Gibbs,  1069. 
Lime    Rock    Bank    v.    Phetteplace, 

1013. 
Lindberg  v.  Thomas,  1247. 
Lindheim,  H.  &  Co.  v.  Central  Nat. 
Realty  &  Construction  Co., 
381. 
Lindsay  v.  American  Mort.  Co.,  617. 

V.  Jackson,  442. 

V.  Lynch,   1245. 
Lindsey    v.    Delano,    259,    526,    544, 

1135,    1142,    1247. 
Linn  v.  Patton,  190. 
Linnell  v.  Lyford,  1029,  1036,  1047, 

1062,   1234. 
Linville  v.  Savage,  916. 
Lippard  v.  Ricketts,  1023. 
Lipperd  v.  Edwards,  225,  734. 
Lipschutz  V.  Horton,  380. 
Lipscomb  v.  Hammett,  49. 
Liskey  v.  Snyder,  1243. 
Litchfield  v.  Register,  605. 
Lithauer  v.  Royle,  989,  990. 
Litka  V.   Wilcox,  302. 
Littauer  v.  Goldman,  199. 
Littell  V.   Grady,  640. 

v.  Zuntz,  625,  626. 
Little  V.  Lockman,  982. 

V.  Rawson,  381. 
Livingston  v.  Byrne,  624,  640. 

V.  Hayes,  354. 

V.  Ives,   1229. 

V.  Livingston,  72,  75,  79. 

V.  Mildrum,   61,   567,   570,   571, 
831,  840,  854,  858.  886,  902. 


TABLE 
References 
Livingston  v.  New  Eng.  Mortg.  Se- 
curity Co.,  147,  1113. 

V.  Pure  Iron  Co.,  1227. 

V.  Tanner,  348. 
Livingstone  v.  Dean,  415,  418. 
Lloyd,  In  re,  640. 
Lloyd  V.  Frank,  618. 

V.  Johnson,   170. 

V.  Lander,   138,   139,   172. 

V.  Passingham,    792,    793,    797, 
799,  815,  821. 

V.  Waite,   1098. 
Lock  V.  Fulford,  584,  591. 
Lockard   v.   Hendrickson,  966,  973. 
Locke  V.  Caldwell,  75,  1247,  1252. 

V.  Homer,  242,  244,   1145. 

V.  Klunker,  792. 

V.  Lomas,   123,   127. 

V.  Palmer,  1044. 
Lockett  V.  Hill,  912. 
Lockey  v.  Lockey,  7Z. 
Locklin  v.  Moore,  49,  344. 
Lockman   v.   Reilley,    167,    170,   193, 

667,  676. 
Lockridge  v.  Foster,  424. 
Lockwood  V.  Beckwith,  440. 

V.  Benedict,   149,  252. 

V.  Cook,  540,  556. 

V.  Fawcett,  234. 

V.  Fox.  334,  980. 

V.  McGuire,  623. 

V.  Mitchell,  409. 

V.  Noble,  371. 

V.  White,  149. 
Loeb  V.  Tinken,  967. 

V.  Tinckler,  972. 

V.  Willis,  735. 
Loeber  v.  Eckes,  639. 
Loehr  v.  Colborn,  67,  195. 
Lofsky  V.  Maujer,  758.  806,  819. 
Loftis  V.  Duckworth,  1013. 
Loftus  V.  Swift,  983,  995. 
Logan  Assoc,  v.  Beaghen,  1065. 
Logan  V.  Eva,  694. 

V.  Smith,  146,  242,  416,  743. 

V.  Wittum,  540. 
Lomax  v.  Bird.  1099. 

V.  Hide,  1007. 


OF   CASES.  1807 

are  to  Sections. 

Lombard  v.   Gregory,   1162,    1164. 

V.  Pasusta,  540. 
London  &   San  Francisco  Bank  v. 
Dexter  Horton  &  Co.,  273. 
London,  Paris  &  American  Bank  v. 

Smith,  141,  286. 
Lone  Jack  Mining  Co.  v.  Meggin- 

son,  553,  683. 
Loney  v.  Courtnay,  1192,  1220,  1234. 
Long  V.   Herrick,  355. 

V.  Kaiser,  620. 

V.  Kinkel,  394,  401. 

V.  Long,  294,  297,  638. 

V.  Lyons,  275,  363,  579. 

V.  Mellet,  1087. 

V.  Munford,  974. 

V.  Richards,  932,    1105,    1206. 

V.  Slade  &  Farrish,   1177. 

V.  Stansel,  312. 

V.  Storie,  193. 
Long  Island  Loan  &  Trust  Co.  v. 
Long  Island  City  &  New- 
town R.  Co.,  49,  983. 
Longan  v.   Carpenter,  417. 
Longbottom  v.  Berry,  490. 
Longino   v.    Ball-Warren    Commis- 
sion Co.,  1220. 
Longstaff  v.  Meagoe,  714. 
Longworth  v.  Flagg,  310. 

v.  Taylor,  80. 
Lonsdale  v.  Church,  514. 
Loomer  v.  Wheelwright,  395,  883. 
Loomis  V.  Bedell,  498. 

V.  Donovan,  70. 

V.  Eaton,  411.  461. 

V.  Knox,  1087,  1115. 

V.  Riley,  140.  150. 

V.  Ruck,  438,  439. 

V.  Wheeler,  656,  659. 
Loosemore  v.  Radford,  67. 
Lord   V.   Anderson,   890. 

V.  Detroit  Sav.  Bnk.,  714. 

V.  Lindsay,  439. 

v.  Morris,    72,,   80,    1026. 

V.  Shaler,   81. 
Losey  v.  Bond.  459. 

V.  Simpson,  416,  417. 
Lossee  v.  Ellis,  986. 


1808  TABLE 

References 
Lothrop's  case,   193. 
Lottimer  v.  Lord,  759.  760,  778,  783, 

786.  787,   788,   789,  810. 
Loucks  V.  Van  Allen,  860,  890. 
Loud   V.   Hamilton,  406. 

V.  Lane,    1128. 
Louder  v.  Burch,  1187. 
Louisiana  Savings  Bank.  In  re,  829. 
Louisville  &  Nashville  R.  R.  Co.  v. 
Illinois    Cent.    R.    R.    Co., 
686. 
Louisville  Trust  Co.  v.  Louisville, 

N.  A.  &  C.  Ry.  Co.,  183. 
Lounsbury  v.  Catron,  212. 

V.  Norton,   1029,   1038,   1154. 
Love  V.  Watkins,  IZ. 
Lovegrove  v.  Cooper,  874. 
Lovejoy  v.  Vose,   110. 
Lovelace  v.   Hutchinson,  610,   1052, 
1062. 

V.  Webb,  805,  1116. 
Loveland  v.  Clark,  609,  940,  944. 
Lovell  v.  Cragin,  697,  855. 

V.  Farrington,    203,    1081. 

V.  Goss,  61. 

V.  Leland,  17. 
Loverin  v.  Humboldt  Safe  Deposit 

&  Trust  Co.,  468. 
Lovering  v.   King,  360. 
Lovett  V.  German  Reform  Church, 

■335,  347,  730. 
Low  V.  Allen.  80,  474. 

V.  Purdy,  161,  165,  912,  922,  924. 
Lowber  v.  LeRoy,  71. 
Low^e  v.  Weil,  754. 
Lowenstein  v.  Phelan,  328. 

V.  Rapp,  516. 
Lowery  v.  Parker,  282. 
Lowes  v.  Lush,  667,  676. 
Lowndes  v.  Chisholm,  561. 
Lowrey  v.   Byers,   113,   1102. 
Lowry  v.  Akers,  1087. 

v.  Mayo,    1033. 

V.  Parker,  282. 

V.  Tew,    1103. 
Lowy  V.  Boenert,  598. 
Lucas  V.  Dennison,  1256. 

V.  Hendrix,  462. 


OF    CASES. 
are  to  Sections. 

Luce,  In  re,  721. 

Luce  V.   Hinds,  221,  223,  229,  252, 

253,  744. 
Lucken  v.  Fickle,  1236. 
Lucketts  v.  Townsend,   1038. 
Luddy  V.  Pavkovich,  337,  1003. 
Ludington  v.  Harris,  239. 

v.  Slauson,  423,  448. 

V.  Taft,  986. 
Ludlow  V.  Lansing,  723,  725,  726. 

V.  Ludlow,  482. 

V.  Ramsey,   1251. 

V.  Van  Camp,  73. 
Lufkin   V.   Mayall,   395. 
Lumsden  v.   Manson,  1177,   1220. 
Lund  V.   Woods,    155. 
Lundberg  v.  Davidson,  324. 
Luning  v.   Brady,   146. 
Lunt  V.   Lunt,    114. 
Lusenhop  v.  Einsfeld,  1037. 
Lyle  V.  Smith,  381. 
Lyman  v.  Gedney,  304,  477. 

V.  Little,  213,   1185. 

V.  Lyman,  584,  602,  855,  985. 

V.  Sale,  570,  574. 
Lynch  v.  Cunningham,  64. 

V.  Jackson,  1135. 

V.  Ryan,  1182,  1185,  1189,  1205, 
1207,  1243. 

V.  Simmons      Hardware      Co., 
1610. 
Lynchburg    Perpetual    Bldg.    &    L. 

Co.  V.  Fellers,  584. 
Lynde  v.  Budd,  395,  396. 

V.  Dennison,    76. 

V.  O'Donnell,  537,  725,  726. 

V.  Verity,    528. 
Lyndon  v.  Campbell,  468. 
Lyng  v.  Marcus,  762. 
Lynn    v.    Freemansburgh    Building 
&  Loan  Association,  855. 

V.  Richardson,  94. 
Lyon  V.  Bailey,  476. 

V.  Brunson,   619. 

V.  Clark,   514. 

V.  Dees,  662. 

V.  Hall,  514. 

V.  Ilvain,  1050. 


TABLE 
References 

Lyon  V.  Lyon,  133.  174,  182. 

V.  McDonald,  514,  1256. 

V.  Morgan,    136. 

V.  Perry,  339,  341. 

V.  Powell,  488. 

V.  Robbins,  600.  1129,  1199. 

V.  Sandford,    183,    190,    972, 
Lyons  v.  Robbins,  1066. 

V.  Robinson,   1208. 

V.  Sundius,  344. 
Lysinger  v.  Hayer,  1162. 
Lyster  v.  Brewer,  101, 
Lytton  V.  Lytton,  83. 

M. 

Mabie  v.  Hatinger,  328. 
Mabry  v.  Harrison,  827. 
Mabury  v.  Ruiz,  155. 
Macauley  v.   Hayden,  466. 
Macclesfield    v.    Fitton,    163. 
Mace  V.   Scott,  268. 
Macey   v.    Fenwick,    179. 
Macfarlane  v.  Macfarlane,  621,  640. 
MacGregor   v.    Pierce,    1248, 
Mack  V.   Austin,  36,  232. 

V.  Graver.    179. 

V.  Hill.  1029. 

V.  Prang,   408. 
Mackay  v.  Brownfield.  402. 
MacKellar  v.  Rogers,  792. 
Mackenna    v.    Fidelity    Trust    Co., 

1133,  1192. 
Mackenzie  v.  Alster,  161,   165,  922. 
Mackey  v.   Cairus,  985. 

V.  Peterson,   400. 
Mackie  v.  Langsing,  80. 
Macloon  v.  Smith,  212,  452,  482,  484, 

501. 
Macomb  v.  Prentis,  567,  571. 
Madaris  v.  Edwards,  451,  455. 
Madden  v.  Lennon.  381. 
Maddock.  In  re,  827. 
Madison    Ave.    Baptist    Church    v. 
Baptist    Church    in    Oliver 
St.,  85,  1185. 
Madison  Trust  Co.  v.  Axt,  817. 
Magee  v.  Sanderson,  339. 

Mortg.  Vol.  XL— 114. 


OF   CASES.  1809 

are  to  Sections. 

Magin   v.   Pickard,   537. 
Magill  V.  Hindsdale,  179. 
Magilton  v.  Holbert,  1015. 
Magnusson  v.  Charlson,  117L 

v.  Williams,  944. 
Magruder  v.  Eggleston,  SO,  64,  327, 

570. 
Maguire  v.  Allen,  759,  820. 
Mahaflfy  v.  Paris,  1061. 
Mahagan  v.  Mead,  584,  590. 
Maher  v.  Lanfrom,  54,  70,  410,  411, 
460,  467. 

V.  O'Connor,  979. 

V.  Tower  Hotel  Co.,  166. 
Mahn  v.  Hussey,  328. 
Mahon   v.   Crothers,   798,   799,   811, 

812. 
Mahone  v.  Williams,  561,  573,  574. 
Mahoney  v.  Robbins,  495. 
Main  v.  Ginthert,  758,  792,  819. 

V.  Schwarzwaelder,  490,  713. 
Maine  v.  Cumston,  1145. 

V.  Cunston,  1145. 
Maitland  v.  Godwin,  54. 
Major  V.  Major,  774. 
Malcolm   v.   Allen,  54,   56,  61,  275, 
346,  363,  571,  580. 

V.  Foster,   511. 

V.  Montgomery,  820. 
Malcon  v.  Smith,  62. 
Malin  v.  Malin,  399. 
Mallalieu  v.  Wickhan,  1087. 
Mallory   v.    Kessler,   917. 

V.  Patterson,  576. 

V.  West   Shore,   H.   R.   R.   Co., 
63,   127,  326,  583. 
Malone  v.  Roy,  1031. 
Malloney  v.   Horan,  879,  880. 
Malloy.v.  Vanderbilt,  75. 
Mally  V.  Mally,  485. 
Maloney  v.  Earheart,  1105. 

V    Horan,  156. 

V.  Lafayette  Bldg.  &  L.  Ass'c, 
469. 

V.  Nelson,  67. 

v.  Webb.  555.  628.  640.  641. 
Malott  v.  Goff.  67. 
Malsberger  v.  Parsons,  394. 


1810  TABLE    OF 

References  are 

Man  V.  Jobusch,   1248. 
Manchester  P.  W.  v.  Stimpson,  985. 
Maner  v.  Washington,  422. 
Maney  v.  Porter,  422. 
Manhattan  B.  &  M.  Co.  v.  Thomp- 
son, 231,  232. 
Manhattan  Co.  v.  Evertson,  431. 
Manhattan  Life  Ins.  Co.  v.  Craw- 
ford, 244. 

V.  Glover,  221,  233. 

V.  Wright,  1032. 
Manine  v.  Carlson,  338. 
Manley  v.  Felty,  468. 
Mann  v.  Jennings,  617,  628. 

V.  Mann,  71,  440,  716. 

V.  Marsh,  267,  473. 

V.  Merchants'  L.  &  Trust  Co., 
417. 

V.  Pearson,  434. 

V.  Provident  Life  &  Trust  Co., 
1145. 

V.  Richardson,  1175. 

V.  Smyser,  71. 
Manning  v.  Markel,   187. 

V.  McClurg,  370,  377,  378,  532, 
752. 

V.  Tuthill,  1020,  1185. 

V.  Warren,   73. 
Mansfield  v.  Kilgore,  1061. 
Manufacturers  &  Mechanics'  Bank, 
v.    Bank    of    Pennsylvania, 
1029. 
Manufacturing  Co.  v.  Price,  146. 
Manwaring  v.  Jenison,  545,  610. 
Marbury  Lumber  Co.  v.  Posey,  1234. 
March   v.    Lowry,   31. 

V.  Ludlam,   640. 
Marcole  v.  Hinnes,  529. 
Marcus  v.  Collamore,  937. 
Marcy  v.    Dunlap,  399. 
Marden  v.  Dorthy,  456. 
Margruder  v.  Kittle,  725. 
Mark  v.  Buffalo,  1027. 

V.  Murphy,  146. 
Markee  v.  City  of  Rochester,  271. 
Market  Nat.   Bank  v.    Pacific   Nat. 

Bank,  547. 
Markel  v.  Evans,  198. 


CASES. 
to  Sections. 
Markham  v.  O'Connor,  458. 

v.  Wortham,  324. 
Markle  v.  Rapp,  218,  392. 
Marks  v.   Pell,   1251,   1256. 

V.  Sewall,   140. 
Markwell    v.    Markwell,    320,    940, 

944. 
Marlin  v.  Sawyer,  941. 
Marine  Bank  of  Buffalo,  The,  v.  In- 
ternational   Bank,    62,    63, 
102. 
Marlatt  v.  Warwick,  640. 
Marling  v.  Jones,  416. 
Marlow  v.  Barlew,  213. 
Marmon  v.  Marmon,  397. 
Marlot  V.  Germania  Assoc,  341. 
Marquam  v.  Ross,  609. 
Marquat  v.  Marquat,  331. 
Marrier  v.  Lee,  488. 
Marriott  v.  Givens,  18,  132,  310. 
Marsh,  Re,  670. 
Marsh  v.  Austin,  120. 

V.  Green,  139. 

V.  Lowry,  31,  529. 

V.  Morton,  1012. 

V.  Pike,  112,  227,  242.  246,  481, 
743,  745,  750. 

V.  Ridgeway,  545,  624,  627. 

V.  Sheriff,  640,  642. 

V.  Vanness,  476. 
Marshall   v.   Davies,   110,   112,  225, 
242,  243,  735,  738,  743,  746, 
753,  1020,  1185. 

V.  Knox,  765. 

V.  Lippman,  389. 

v.  Moore,  584. 

V.  Stewart,  515,   1029. 
Marshall  &  Ilsley  Bnk.  v.  Cady,  806i. 
Marson  v.  Robinson,  1185. 
Marston  v.  Brackett,  421,  456. 

V.  Brittenham,  62. 

v.  Johnson,  623,  649. 

V.  Marston,  50,  579,  683. 

V.  Williams,    1087. 
Martens  v.  Rawden,  341. 
Martha,  The,  985. 


TABLE    OF 

References  are 
Martin  v.  Earth,  555,  628. 

V.  Beatty,  716. 

V.  Bowker,  75. 

V.  Cauble,  232,  460. 

V.  Cleve,  43. 

V.  Clover,  43. 

V.  Fridley,  184,  1139,  1191. 

V.  Harrison,    165. 

V.  Holland,  340. 

V.  Jackson,    74,    75,    303,    1247, 
1252. 

V.  Kelly,  56,   1065. 

T.  Land  Mortg.  Bank  of  Texas, 
43. 

V.  London,    Chatham,    etc.,    R. 
Co.,  294. 

V.  Mayo,  395. 

V.  McReynolds,  98,  99,  115,  132. 

V.  Morris,  144,  147. 

V.  Ratcliff,  1235. 

V.  Sprague,  1089. 

V.  Treasdale,  80. 

V.  Wagener.  1209. 

V.  Ward,  18,  1629. 
Martin's  Appeal,  479,  1065. 
Martine  v.  Lowenstein,  271. 
Martineau   v.    McCollum,    115,   416. 
Martinez   v.   Linsay,   320,   610,   683, 

690. 
Marvel  v.  Cobb,  943,  944. 
Marvin  v.  Chambers,  405. 

V.  Schilling,    1097. 
Marx  V.  Davis,  11,  273. 

V.  Smith,  650. 
Maryland     Permanent     Land     and 
Building   Society  of   Balti- 
more V.    Smith,  556. 
Mashburn    George    D.    &    Co.    v. 

Dannenberg  Co.,  370. 
Maslin  v.  Marshall,  313. 
Mason  v.  Ainsworth,  92. 

V.  Amer.  Mortg.  Co.,  944. 

V.  Beach,  477. 

V.  Barnard,  102,  103. 

V.  Goodnow,  308. 

▼.  Hearn,  1029. 

V.  Lord,  411.  418,  459,  1050. 

V.  Luce,  43,  54. 


CASES.  1811 

to  Sections. 

Mason  v.  Northwestern  Mut.  L.  Ins. 
Co.,  1135,  1173,  1242. 

V.  Osgood  533. 

V.  Payne,  584. 

V.  Philbrook,  458. 

V.  York  &  C.  R.  Co.,  127. 

V.  Scott,  667. 

v.  Stevens,  1248. 
Massaker  v.  Mackerley,  54,  70. 
Massie  v.  Wilson,  589. 
Massie's   Heirs   v.    Donaldson,    165. 
Massing  v.  Ames,  982. 
Massingill  v.  Downs,  872. 
Masson  v.  Saloy,  367. 
Masters  v.  Templeton,  211,  214. 
Masterson  v.  Beasley,  1122. 

V.  Westend  N.  G.  R.  Co.,  457. 
Mather  v.  Eraser,  490. 
Matheson  v.   Rogers,  988,   1006. 
Mathews  v.  Aikin,  229,  1190. 

V.  Heyward,  418. 
Matless  v.  Sundin,  533. 
Matlock  V.  Todd,  400. 
Matney  v.  Williams,  1145. 
Matson  v.   Swift,  839. 
Matt  V.  Fiske,  1224. 
Mattel  V.  Conant.  843. 
Matter  of  Collins,  217. 

of  Davis,  611,  664. 

of  Price,  174. 

of  Silvernail,  838. 
Matterson  v.  Elderfield,  515. 
Matteson  v.   Matteson,  338. 

V.  Morris,  387,  401,  416. 

V.  Thomas,  112,  584,  591,  602. 
Matthews  v.  Coe,  411. 

V.  Daniels,  610,  944. 

V.  Duryee,   840,    843,   854,    858, 
879,  880,  881,  892,  1126. 

V.  Towell,  466. 

v.  Wallwyn.  418. 
Matthewson  v.  Johnson,  609. 
Matzon  V.  Griffin,  716. 
Maulding  v.  Coffin,   1115. 
Maule  V.  Beaufort,  146. 
Maure  v.  Harrison,  230. 
Maury  v.  Mason.  1247. 
Maus  V.  AlcKellip,  1010. 


1812  TABLE    OF 

References  are 
Mavrich  v.  Grier,  160. 
Mawer  v.  Harrison,  1123. 
Maxfield  v.  Willey,  516. 
Maxwell  v.  Home  Fire  Ins.  Co.,  11. 

V.  Newton,  640. 
May  V.  Fletcher,  156. 

V.  Hatcher,  547,  630,  640. 

V.  May,  539,  604,  620,  640,  646, 
651,  652. 

V.  Rawson,  146. 
Mayer  v.  Farmers'  Bank,  221,  1123, 
1135. 

V.  Jones,  1021. 

V.  Margolies,  482. 

V.  Salisbury,  1002. 

V.  Wick,  533. 
Mayfield  v.  Wright,  802. 
Mayhew  v.  Cricket,  1123. 
Maynard  v.  Bond,  783. 

V.  Railey,  799. 
Mayo  V.  Fletcher,  1129. 

V.  Hughes,  402. 

V.  Leggett,  683. 

V.  Tomkies,  163. 
Mayor  v.   Patten,  473. 
Mayor,  etc.,  of  New  York  v.  Col- 
gate, 80. 

V.  Eisler,  259. 
Mays  V.  Rose,  799. 
McAbee  v.  Harrison,  1185,  1189. 
McAllister  v.  Jerman,  411. 

V.  Plant,  98,  339. 
McAlpin  V.  Zitzer,  212. 
McArtee  v.  Engart,  982,  985. 
McArthur  v.  Carrie's  Adm'r.,  1247. 

V.  Franklin,  155,  157,  1134. 
McAuliflfe  V.  Renter,  416. 
McBain  v.  McBain,  652. 
McBride     v.     Farmers'     Bank     of 
Salem,  126. 
V.  Gwynn,  623,  627,  637. 
V.  Lewisohn,  648. 
McBurnie  v.   Seaton,  382. 
McCabe  v.  Bellows,  1126,  1134,  1172, 
1173,  1205. 
V.  Swap,  1145. 
McCagg  V.  Heacock,  1139,  1226. 


CASES. 
to  Sections. 

McCall  V.  Lenox,  SO,  326,  579. 

V.  Mash,  610. 

V.  Yard,  179. 
McCallam  v.   Pleasants,  44. 
McCamantv.  Roberts,  704, 
McCammon  v.  Detroit  L.  &  N.  R, 

Co.,  553,  708,  917. 
McCardia  v.  Billings,  917. 
McCarten  v.  Van  Syckel,  521. 
McCarthy  v.  Benedict,  60,  62. 

V.  McCarthy,  259. 

V.  Gerraghty,  741. 

T.  Graham.   220,   225,   734,   735, 
754. 

V.  Hamburger,  663. 

V.  Peake,  m. 

V.  White,  80. 
McCartney    v.    Denison,    355,    357, 
535. 

V.  Washburn,  446. 
McCarty  v.  Tarr,  232. 
McCaslin  v.  State,  792. 
McCaughey  v.  McDuffie,  967. 
McCauley  v.  Brady,  80,  138,  146,  177, 
346. 

V.  Leavitt,  459. 
McChord  v.  McClintock,  726. 
McClagg  V.  Hancock,  1150. 
McClain  v.  Sullivan,  1087. 
McClane  v.  Shepard,  73. 
McClaskey  v.  O'Brien,  1051. 
McClellan  v.  Bishop,  583. 

V.  McClellan,  974. 
McClelland  v.  A.  P.  Cook  Co.,  1220. 

V.  Bishop,  326,  327. 

V.  Norfolk    Southern    R.    Co., 
328. 
McCIendon  v.  Equitable  Mortg.  Co., 

550. 
McClerkin  v.  Sutton,  464,  500. 
McCung  V.  Cullison,  162. 

V.  Missouri  Trust  Co.,  996. 
McClure  v.  Adams,  209. 

V.  Englehardt,  678. 

V.  Holbrook,  212. 

V.  Little.  1006. 

V.  Owens,  44. 
McCollough  V.  Colby,  346. 


TABLE    OF 
References  are 
McColIura  V.  Jones,  318. 
McComb    V.    Barcelona    Apartment 
Assoc,  404. 

V.  Cordova    Apartment   Assoc, 
404. 

V.  Kankey,  731. 

Y.  Kittridge,  70,  466. 

V.  Spangler,  136. 
McConneaughey   v.   Bogardus,   941. 
McConnell  v.  Blood,  490,  716. 

V.  Scott,  67. 
McCord  V.  Bergautz,  1122. 
McCormick  v.  Bauer,  988. 

V.  Brown,  81. 

V.  Hartley,  9. 

V.  Knox,  1197,  1201. 

V.  Unity  Co.,  1006. 

V.  Wilcox,  1. 
McCotter  v.  Jay,  618,  622,  624,  640. 
McCoy  V.  Morrow,  1252. 
McCrackan  v.  Valentine  Ex'rs,  513. 
McCracken  v.  Ware,  807. 
McCraney  v.   Alden,   409,   410. 
McCrath  v.  Myers,  463. 
McCricket  v.  Wilson.  225,  7ZZ,  734, 

756. 
McCrum  v.  Corby,  106. 
McCullough  V.  Colby,  346. 
McCullum  V.  Turpie,  584. 
McCumber  v.  Gilman,  716. 
McCnrdy  v.  Clark,  103. 
McDaniel  v.  Austin,  283. 
McDaniels  v.  Lapham,  476. 
McDermot  v.  Barton,  537. 
McDermott  v.  Burke,  177,  1128. 

V.  Hennesy,  1017. 
McDevitt  V.  Sullivan,  681. 
McDill  V.  Gunn,  244. 
McDonald  v.  Born,  406. 

V.  Hoffman,  692. 

V.  McDonald,  146,  Z62. 

V.  Mobile  Life  Ins.  Co.  459. 

V.  Neilson,  1192. 

V.  Second  National  Bnk.,  11. 

V.  Sims,  75. 

V.  Vinson,  54. 

V.  Whitney,  459. 


CASES.  1813 

to  Sections. 
McDonnell  v.  DeSoto  Sav.  &  Bldg., 

Ass'c,  640. 
McDougal  V.  Downey,  327. 
McDougald  v.  Capron,  1103. 
McDowell  V.  Fisher,  404. 

V.  Jacobs,  95. 

V.  Markey,  347. 
McEImoyle  v.  Cohen,  80. 
McElrath  v.  Pittsburgh  &  S.  R.  Co.^ 

18,  179. 
McEIwain  v.  Willis,  796. 
McEvens  v.  Welles,  964. 
McEwen  v.  Beard,  482. 

V.  Butts,  640. 

V.  Welleys,  1255. 
McFadden  v.  Mays  Landing  &  E.  H. 

C.  R.  Co.,  56.  132. 
McFarland  v.  Stone,  1251. 
McFarlane    v.    City    of    Brooklyn, 
1185. 

V.  Griffith,  422. 
McFerrin  v.  White,  154. 
McGaugh  V.  Deposit  Bnk.  of  Frank- 
fort, 1087. 
McGee  v.  Davie,  737. 

V.  Smith,  711. 
McGill  V.  Griffin,  1005. 
McGlaughlin  v.  O'Rourke,  221,  232. 
McGough  v.  Sweetzer,  1134,  1205. 
McGovern  v.  Knox,  457. 
McGowan     v.     Branch     Bank     of 
Mobile,  18,  132,  310,  333. 

V.  Newman,  511,  523,  662. 
McGowen  v.  Branch  Bank  at  Mo- 
bile, 117. 
McGown  V.  Sanford,  564,  607, 

V.  Wilkins,  723. 

V.  Yerks,  164. 
McGregor   v.    Eastern    Bldg.    &   L. 
Ass'c,  459,  721. 

V.  McGregor,  96,  120. 
McGregor  &  Darling  v.  Hall,  1033. 
McGuffey  v.  Finley,  92,  138,  198. 

V.  McLain,  144. 
McGuin  V.  Cace,  528. 
McGuire  v.  Van  Pelt,  411. 
McHan  v.  Ordway,  942. 
McHany  v.  Schenk,  623. 


1814  TABLE    OF    CASES. 

References  are  to  Sections. 
McHenry  v.  Cooper,  180,   186,  190,       McLaughlin  v.  Hart,  603 

1105. 
McHugh  V.   Wells,   1135. 
McIIhenny  v.  Binz,  2>7. 
Mcllvain  v.  Assurance  Co.,  479. 

V.  Mutual  Assurance  Co.,  478. 
Mclninch  v.  Schall,  67. 


Mclntire  v.  Conrad,  733. 

V.  Parks,  601. 

V.  Yates,  1006. 
Mclntyre  v.  San  ford,  542. 

V.  Wyckoff,  573. 
Mclnwain  v.  Karstens,  1135. 
Mclver  v.  Cherry,  120,  122,  155. 
McKay  V.  Wakefield,  161,  431. 
McKean  v.  German-American  Sav. 

Bnk.,  470. 
McKee  v.  Jordan,  1094. 

V.  Murphy,  186. 
McKeighan  v.  Hopkins,  660. 
McKelvey  v.  Wagy,  354. 
McKenney  v.  Whipple,  344. 
McKenzie   v.    Bismark   Water    Co., 
568. 

V.  Hartford    Life    &    Accident 
Insurance  Company,  741. 
McKeon  v.  Hagen,  233. 
McKernan  v.  Neflf,  179,  180,  667,  670. 

V.  Robinson,  217,  221,  273,  274. 
McKinney  v.  Hamilton,  134. 

V.  Miller,  104,  345,  584. 
McKinny  v.  Glassburn,  538. 
McKinstry  v.  Conly,  1044,  1047. 

V.  Mervin,  856,  977,  1185. 
McKnight  v.  Phelps,  411. 
McLagan  &  Pierce  v.  Witte,  556. 
McLain  v.  Badgett,  177. 
McLain    Land    &    Invest.     Co.    v. 
Swoflford    Bros.    Dry    Gds. 
Co.,  640,  648. 
McLallen  v.  Jones,  94. 
McLane  v.  Abrams,  1003. 

V.  Geer,  445. 

V.  Piaggio,  327,  401,  723. 

V.  Placerville  &   S.  V.  R.   Co., 
798,  828. 
McLaren  v.  Hartford  Ins.  Co.  708. 
McLarty  v.  Urquhart,  18,  310. 


V.  Shepherd,  1029. 

V.  Teasdale,  624. 
McLaurie  v.  Thomas,  584. 
McLean  v.  Baldwin,  379. 

V.  East  River  Ins.  Co.,  508. 

V.  Lafayette  Bank,  112,  815. 

V.  Pressley,  43,  54,  65,  762. 

V.  Ragsdale,  67,  90. 

V.  Stith,  367. 

V.  Towle,  112. 

V.  Thorp,  81. 
McLeish  v.  Hanson,  446. 
McLelland  v.  A.  P.  Cook  Co.,  1220. 
McLenahan  v.  McLenahan,  239. 
McMahan  v.  Amer.   Bldg.  &  L.  & 

Tontine  Sav.  Ass'c,  917. 
McMahon  v.  Russell,  1211. 
McManis  v.  Rice,  174,  175. 
McMasters  v.  Wilhelm,  419. 
McMeel  v.  O'Connor,  1096. 
McMichael  v.  Russell,  1133. 

v.  Webster,  428,  446. 
McMillan  v.  Fish,  490. 

V.  Gordan,  202. 

V.  Hunnicut,  645. 

V.  Mason,  98. 

V.  McCormick,  79,  80. 

V.  Richards,  345,  683,  967,  1027, 
1039,    1047,    1115. 
McMullen  v.  Wenner,  418. 
McMurray  v.  Brassfield,  670. 

V.  Gifford,  401. 

V.  McMurray,  174,  269,  623,  649, 
721. 
McIMurtry  v.  Montgomery  Masonic 

Temple  Co.,  88. 
McNair  v.  Lot,  75,  1247,  1252. 
McNamara  v.  Clark,  94. 

V.  Oakland   Bldg.   &  L.   Ass'c, 
1009. 
McNeal  Pipe  &  F.  Co.  v.  Woltman, 

573. 
McNees  v.  Swaney,  1047,  1150. 
McNeil    v.    Sun    &    Evening    Sun 
Building    Mutual    Loan    & 
Accumulating  Fund  Ass'c, 
583. 


TABLE    OF    CASES. 
References  are  to  Sections. 


1815 


McNeill  V.  McNeill,  612. 
McNew  V.  Booth,  1145. 
McPherson  v.  Hayward,  1247. 

V.  Housel,   151,  1114. 

V.  Walters.  458. 

V.  Wood,  628. 
McQuade  v.  Rosecrans,  406. 
McQueen  v.  Whetstone,  1129,  1189. 
McRea   v.    Central   National    Bank, 

490,  491. 
McReynolds  v.  Gates,  982. 

V.  Munns,  Z2,2,  526,  654. 
McRoberts  v.  Pooley,  901,  911. 
McSiece  v.  Elison,  1086. 
McSorley  v.  Hughes,  7,  1054. 

V.  Larissa,  109,  1185,  1189. 

V.  Lindsay,  1129. 
McTaggart  v.  Smith,  882. 
McVay  v.  Bloodgood,  102. 
McVeigh  v.  Sherwood,  584. 
McWilliams  v.  Nisley,  488.~ 
Meacham  v.   Steele,  478,  595,   1065, 

1172,  1209. 
Mead  v.  Hoover,  538,  628. 

V.  New  York,  H.  N.  R.  Co.,  33. 

V.  Mead,  68,  71. 

V.  Orrery,  1114. 

V.  Peabody,  599. 

V.  Phillips,  413. 
Meaden  v.  Sealey,  815. 
Meador  v.  Meador,  330. 
Meads  v.  Lansingh,  71. 
Meaher  v.  Howes,  1220. 
Means  v.  Anderson,  1184. 

V.  Harrison,  80. 
Mebane   v.    Mebane,    165. 
Mechanics'  Bank  v.  Edwards,  859. 
Mechanics'  Sav.  Bank  v.  Goff,  246. 
Meddaugh  v.  Wilson,  1008. 
Medearis  v.  Cranberry,  406. 
Medley  v.  Elliott,  74,  79,  80,  82,  114, 
162,  417. 

V.  Mask,  1217. 
Medsker  v.  Parker,  584,  592. 
Meech  v.  Allen,  872. 

V.  Ensign,  247,  743. 


Meehan  v.  Blodgett,  536. 

V.  First  National  Bank,  273. 
V.  Forrester,  1121. 
Meeker  v.  Claghorn,  92. 
V.  Tanton,  120. 
V.  Wright,  141. 
Meeks  v.  Johnson,  259,  468. 
Meier  v.  Kansas  Pac.  Ry.  Co.,  759, 
782. 
V.  Meier,  54,  55,  553,  638,  683. 
Meigs  V.  McFarlan,  1183,  1235,  1243. 
V.  Thomson,  213. 
V.  Willis,  484.  723,  729. 
Meigs'  Appeal,  716. 
Melick  V.  Dayton,  434. 

V.  Pidcock,  683. 
Mell  V.  Mooney,  401. 
Mellick    V.    DeSeelhcrst,    81. 
Melsheimer  v.  AIcNight,  938. 
Melton    V.    Shenango    Natural    Gas 

Company,  620. 
Memphis  &  L.  R.  Co.  v.  Dow,  1003. 
Mendenhall  v.   Hall,    136. 

V.  Steckel,  464,   500. 
Meng  V.  Houser,  146,  584.  1209. 
Mercantile  Trust  Co.  v.  Chicago  P. 
&  St.  L.  R.  Co.,  129. 
V.  Missouri,    K.    &    T.    R.    Co., 

47,  292,  328,  334,    1015. 
V.  South    Park   Residence    Co., 
547. 
Merced    Security    Savings    Bank   v. 
Cassaccia.  279. 
V.  Simon,  584. 
Mercer  v.  McPherson,  1102. 

V.  Selden,  1251. 
Mercereau  v.  Prest,  640. 
Merchant  v.  Thomas,  154. 
Merchants'  Bank  v.  Thomson,  155, 
156,  211,  212,  484,  485,  487, 
664,  666,  668,  679. 
Merchant's     Bank     of     Buffalo     v. 

Weill,  419. 
Merchants'  Exchange  Bank  v.  Com- 
mercial     Warehouse      Co., 
411,  459. 
Merchants'  Ins.  Co.,  /;/  re,  765. 


1816  TABLE    OF    CASES. 

References  are  to  Sections. 
Merchants'  Ins.  Co.  v.  Hinman,  236,       Messervey  v.  Barelli,  591. 
267,  570,  637,  741. 

V.  Marvin,  384,  990. 
Merchants'  and  Manufacturers  Bank 
V.  Kent,  Circuit  Judge,  782. 
Merchants'    Nat.   Bk.   v.    Raymond, 

232,  340. 
Merchants'    State    Bank    v.    Tufts, 

1174. 
Meredith  v.  Lackey,  179. 

V.  Wyse,  822. 
Meridian  Oil  Co.  v.  Randolph,  797. 
Meriwether  v.  Craig,  567,  637. 
Merkle  v.  Beidleman,  417,  443. 
Merrell  v.  Ridgely,  1006. 
Merriam  v.  Goss,  1231. 

V.     Miles,  598. 
Merrian,  Ex  parte,  584. 
Merrifield  v.  Ingersoll,  624. 
Merrill  v.  Bickford,  360. 

V.  Chase,  468. 

V.  Grinnell.  259. 

V.  Ladendorf,  640. 

V.  Wright,  367. 
Merriman  v.  Barton,   1078. 

V.  Hyde,  146. 

V.  Moore,  239,  244,  247. 
Merrin  v.  Lewis,   120. 
Merrit  v.  Bowen,  919. 
Merritt,  In  re,  908. 
Merritt  v.  Bartholick,  114. 

V.  Daffin,  162,  165. 

y.  Hosmer,     1107,     1172,     1179, 
1192,  1200. 

V.  Lyon,  788. 

V.  Merritt,  397. 

V.  Phenix,  146,  149. 

V.  Simpson,   174. 

V.  Village  of  Rochester,  547. 

V.  Wells,   101,  210. 
Merryman  v.  Blount,  320. 
Merselis    v.    VanRiper,    1134,    1192. 
Mertens  v.  Wakefield,  417. 
Mervey's  Appeal,   146,  591. 
Merz  V.   Mehner,  719. 
^Jessinger    v.    Foster,     1135,     1148, 
1149,  1251. 


Metcalf  V.  Champion,  1206. 
Metcalfe    v.    Pulvertoft,    770,    792, 

797. 
Methodist    Church    v.   Jaques,   982, 

985. 
Metropolitan  Life  Ins.  Co.  v.  Bend- 
heim,  979. 
V.  Hall,  276. 
Metropolitan  Nat.  Bank  of  N.  Y.  v. 
Connecticut    ]\Iut.    L.    Ins. 
Co.,  1041. 
Metropolitan  Trust   Co.,   v.  Dolge- 
ville  Electric  Light  &  Pow- 
er Co.,  489. 
V.  Tonawanda  Valley  &  C.  R. 
Co.,  209,  211. 
Meux   V.   Bell,   456. 

V.  Trezevant,  576,  624,  663. 
Mewburn  v.  Bass,  941,  1044,  1105. 
Meyer  v.  Bishop,  604,  605. 
V.  Lathrop,  244. 
V.  Orynski,   962. 
V.  Peterson,  605. 
V.  Thomas,   763. 
V.  Webber,  418. 
Meyertown  Bnk.  v.  Roessler,  453. 
Michaels  v.  Townsend,  1050. 
Michigan  Air  Line  Co.  v.  Barnes, 

294. 
Michigan  Ins.  Co.  v.  Brown,  80. 
Michigan   Mutual  Life  Ins.   Co.  v. 
Klatt,  549,  552,  556. 
V.  Richter,  540. 
Michigan     State    Bank     of     Eaton 
Rapids  V.  Trowbridge,  132, 
201. 
Michigan   State    Ins.    Co.  v.    Soule, 

598. 
Michigan  Trust  Co.  v.  City  of  Red 

Cloud,  347. 
Michigan    Trust    Co.    v.    Lansing 

Lumber  Co.,  294. 
Mickle  V.  Maxfield,  335,  754,  1001. 
V.  Rambo,  602. 


TABLE    OF    CASES.  1817 

References  are  to  Sections. 
Dillaya,    146,    147,    921,       Miller  v.  Lefever.  543,  552. 


Mickles   v. 

1189,   1205. 

V.     Townsend,  418. 
Micklethwait  v.  Micklethwait,  77Z. 
Middlebrook  v.  Corwin,  490. 
Middleton    v.    Dodswell,    796,    797, 

799. 
Middletown  Bank  v.  Russ,  84. 
Middletown  Savings  Bank  v.  Bach- 

arach,  352. 
Midwood  Park  Co.  v.  Baker,  418. 
Milburn  v.  Milburn,  276. 
Miles  V.  French,  302. 

V.  Smith,  159,  165. 

V.  Stehle,   1135. 

V.  Voorhies,  1134. 
Milford  V.  Peterson,  610. 
Milk  V.  Christie,  369. 
Millandon    v.    Brugiere,    989,    993, 

1002. 
Millard  v.  Hathaway,  1247. 

V.  Truax,  1004,  1100,  1187,  1214. 
Miller  v.  Avery,  500. 

V.  Ayres,  1091,  1124. 

V.  Baschore,  81. 

V.  Bear,  92. 

V.  Board,  684. 

V.  Burke,  611. 

V.  Case,  834. 

V.  Clark,  133. 

V.  Collyer,    611,    624,    652,    664, 
665.  667. 

V.  Donaldson,  120. 

V.  Dooley,  854. 

V.  Finn,  184,  211,  936. 

V.  Green,    1107. 

V.  Gregory,  424. 

V.  Helm,  79,  80. 

V.  Henderson,  105,  198,  201. 

V.  Holbrook.  467. 

V.  Holland,  584. 

V.  Hull,  29,  409,  529,  607,  937. 

V.  Hunt,  518. 

V.  Hurford,   1185. 

V.  Kendrick,  624. 

V.  Kennedy.  598. 

y.     Kolb,  710. 

V.  Lanham,  545,  637,  640. 


V.  Lockwood,  404. 

V.  Mann,  618. 

V.  McConnell,  360. 

V.  McGuckin,  372. 

V.  Miller,  155. 

V.  Miller  Knitting  Co.,  67. 

V.  Peter,  1206. 

V.  Plumb,   714. 

V.  Remley,  752. 

V.  Rogers,  584,  602,  1209. 

V.  Rusforth,    1147. 

V.  Smith,  75. 

V.  Stettiner,  259. 

V.  Stewart,  399. 

V.  Thompson,     139,     242,     244, 
459,   743,   745. 

V.  Trudgeon,  573. 

V.  Trustees    of    Jefferson    Col- 
lege, 70,  80. 

V.  Washington  Sav.  Bank,  855. 

V.  Winchell.  109. 
Millett  V.   Blake,   1220,   1234. 
Milligan's  Appeal,  584. 
Milligan  v.  Cromwell,  281. 

V.  Gallen,   850. 
Milliken  v.  Bailey,   1063. 

V.  Piles,  632. 
Mills  V.  Bliss,  372,  381. 

V.  Dennis,    963,    974. 

V.  Hamer,  540. 

V.  Hoag,   119,  390. 

V.  Mills,  1044,  1047,  1245. 

V.  Ralston,  614,  656,  671. 

V.  Rodewald,  436. 

V.  Stehle.  1236. 

V.  Traylor,  179. 

V.  Van  Voorhies,  155,  156,  157, 
267,  668,  880,  1205. 

V.  Watson,  242,  243. 
Mills     County    National     Bank    v. 

Perry,  451. 
Millsaps  V.  Bond,  584. 

V.  Chapman,  1003. 
Millspaugh   v.    McBride,   432.    1050, 

1147,  1217. 
]\Iilmo  National  Bank  v.  Rich,  850. 


1818 


TABLE    OF    CASES. 
References  are  to  Sections. 


Milroy  v.  Stockwell,  98,  228. 
Milspau  V.  McBridge,  432,  1147. 
Miltenberger  v.  Logansport  R.  Co., 

759,  817. 
Milwaukee  &  M.  R.  Co.  v.  Soutter, 

762. 
Milwaukee  &  St.  P.  R.  Co.  v.  Mil- 
waukee &  M.  R.  Co.,  767, 
824. 
Milwaukee   &    M.    R.    Co.    v.    Mil- 
waukee &  W.  R.  Co.  385. 
Milwaukee     Trust      Co.      v.     Van 

Valkenburgh,  127. 
Mims  V.  McDowell,  110. 

V.  Mims,  138,  140,  143,  155,  388. 
V.  West,  368. 
Miner   v.    Beekman,    146,    147,    148, 
681,    719,    758,    1056,    1150, 
1185,  1189,  1244,  1247,  1249, 
1254. 
V.  Smith,    138. 
Miners'   Trust   Bank  v.   Roseberry, 

411. 
Minn  V.  Stant,  127. 
Minnesota  R.  R.  Co.  v.  St.  Paul  Co., 

533. 
Minor,  In  re,  656,  680. 
Minor  v.  Betts,  721. 
V.  Hill,   933. 
V.  Leland,  1145. 
Minot  V.  Sawyer,  1178. 
Minter  v.  Carr,  1064,  1117. 
Mishkind-Feinberg    Realty    Co.    v. 

Sidorsky,  263. 
Mississippi    Valley     Trust    Co.     v. 

McDonald,  432. 
Mitchell   V.   Bartlett,  659,  680,   681, 
708,  718,  758,  792,  960. 
V.  Began,  82. 
V.  Bowne,  735. 
V.  Bunch,  971. 
V.  Gray,  978. 
V.  Kinnard,  667. 
V.  Ladew,    102. 
V.  McKinney,  132,  561. 
V.  Moorman,  469. 


Mitchell    V.    Nat.    Ry.    Bldg.    &   L. 
Ass'c,  459. 

V.  Preston,  409. 

V.  Reed,  457. 

V.  Weaver,    831. 
Mix  V.  Andes  Ins.  Co.  134. 

V.  Hotchkiss,  352,  1020,  1185. 
Mixer  v.  Bennett,  529. 

V.  Coburn,  425. 
Mixter  v.  Woodcock,  691. 
Mizner  v.  Kussell,  404. 
Mjones    v.    Yellow    Medicine    Co., 

Bk.,  363,  983,  1003. 
Mobile   Marine   Dock  &   Mut.   Ins. 

Co.  V.  Huder,  584,  1209. 
Mobile  Savings  Bank  v.  Burke,  166. 
Mobray  v.  Leckie,  50,  54,  56,  64. 
Mocatta  v.   Murgatroyd,  610,   1061, 

1246. 
Model  House  Assoc,  v.  Boston,  941. 
Moeller  v.  [Nloore,  1048. 
Moffat  V.  Barnes,  514. 
Moffett  V.  Parker,  417. 
Moffitt  V.  Roche,  100,  232,  346. 
Moggats  V.  Coe,  683. 
Mohawk  Bank  v.  Atwater,  573,  574. 
Mohr  V.  Griffin,  421,  426. 
Moir  v.Dodson,  344. 

V.  Flood,    667. 
Mojarrieta  v.  Saenz,  263. 
Moller  V.  Watts,  618. 
Monarch    Coal    &    Mining    Co.    v. 

Hand,  584,  599. 
Moncrieff  v.  Hare,  792. 
Monkhouse  v.  Bedford,  1237. 

V.  Corporation  of  Bedford,  977. 
Monot  v.  Ibert,  1174. 
Monroe   v.    Fohl,   62. 
Monroe  Bros.  &  Co.  v.  Fuchtler  & 

Kern,  944. 
Montague  v.  Barton  &  A.   R.  Co., 
349. 

V.  Dawes.    640,    913. 

V.  Dent.  490. 

V.  International  Trust  Co.,  626. 

V.  Marunda,   854. 

V.  Priester,  72,  78,  476. 


TABLE    OF    CASES.  1819 

References  are  to  Sections. 
Montclair  Bldg.  &  L.  Ass'c  v.  Farm-       Moore    v.     Metropolitan     National 


er,  651. 
Montgomery  v.  Birge,  190. 
V.  Brnere,    79. 
V.  Chadwick,    1029,   1189,    1205, 

1249. 
V.  Gnatt,   80. 
V.  King,   92. 
V.  Middlemiss,  681. 
V.  Robinson,   282. 
V.  Scott,  400. 

V.  Tutt,  179,  725,  967,  1027. 
V.  United  States,  1251. 
Monticello     Hydraulic     Works     v. 

Loughry,  431. 
Montpelier   Savings    Bnk.   &   Trust 

Co.  V.  Follett,  295,  347. 
Montz  V.   Schwabacher,  676. 
Monzani  v.  iMonzani,  653. 
Moody  V.   Haselden,  601. 

V.  Northwestern       &       Pacific 
Hypotheek  Bnk.,  892. 
Mooeny  v.  Tyler,  59. 
Moon  V.  Well  ford,  182. 
Mooney  v.  Maas,   156. 
Moore  v.  Adams,  406. 

V.  Anders.     1113,     1123,     1150, 

1253. 
V.  Anglo-American    Dry    Dock 

Co.,  11,  273. 
V.  Beasom,  1077,  1085,  1121. 
V.  Burrows,  121. 
V.  Cable,  75,  85,  1189,  1205,  1247, 
1249,  1252. 


V.  Chandler,  584,  595.      . 

V.  Clark,  748. 

V.  Cord,    109,    147.    179, 

1243. 

V.  Cornell,   115. 

T.  Crandall,  42,  49,  62. 

V.  Dick,   918. 

V.  Keine,   43,    57. 

V.  Kime,  43. 

V.  Kraemer,  285,  309. 

V.  Lindsay,  350. 

V.  Lindsey,   178. 

V.  Mayor.    880. 

V.  McNamara,  1114. 


1136, 


Bank,  94,  418. 

V.  Moore,  267. 

V.  Pye,  660,  673. 

V.  Sargent,  55. 

V.  Shaw,  225,  614,  659,  734,  738. 
756. 

V.  Shultz,   533. 

V.  Shurtleff,    600. 

V.  Smith,  91,  1133. 

V.  Starks,    161. 

V.  Sugg,  705. 

V.  Titman.  339,  660,  66i. 

V.  Ware,  101,  115. 
Moores'  Appeal,  239. 
Moores'  Estate,  239. 
Moores  v.  Ellsworth,  44. 
Moors  V.  Albro,  172. 
Moran  v.  Conoma,  136. 

V.  Gardemeyer,  79. 

V.  Hagerman,  697. 

V.  Palmer,  485. 
Mor daunt  v.  Hooper,  799. 
More  V.   Calkins,  280. 
Morgan  v.  Arthurs,  490. 

V.  Carter,  623. 

V.  Chicago  &  A.  R.  Co.,  458. 

V.  Davis,   476. 

V.  Field,  19. 

V.  Gilbert,  799. 

V.  Joy,  543. 

V.  Magoffin,  143. 

V.  Martien,  326. 

V.  Meuth,  684. 

V.  Morgan,    72,,    401,    1247. 

V.  Plumb,  17,  736,  964. 

V.  Pott,  476. 

V.  Shinn,  1037. 

V.  Stevens,    523. 

V.  Tipton,  409. 

V.  Wilkins,  220,  72,7. 
Morgan's  L.  &  T.  R.  &  Steamship 
Co.    v.    Texas    C.    R.    Co., 
43.   45. 
Morgenstern  v.  Klees,  50,  54,  56, 
Morice  v.  Durham,  623. 
Mority  v.  St.  Paul,  683. 
Moritz   v.   St.    Paul,   684. 


1820  TABLE 

References 

Morrell  v.  Cawley,  267. 

V.  Dickey,   125. 
Morrill  v.  Aden,  395. 

V.  Morrill,    361. 
Morris  v.  Branchaud,  792,  793,  801, 
802. 

V.  Cain,  835. 

V.  Elme,  788. 

V.  Floyd,  392,  411,  459. 

V.  Linton,   766. 

V.  McKnight,  916. 

V.  Mowatt,   667,   668,   703,   872 

V.  Nixon,    1047. 

V.  Tuthill,  412. 

V.  Way,  409. 

V.  Wheeler,   182,  389,  985,  987 
996. 
Morris  Canal  Co.  v.   Emmett,  434 
Morrison  v.  Bean,  18,  310. 

V.  Beckwith,  600. 

V.  Buckner,  310,   762,  792,  793 
797. 

V.  Morrison,  90,  392,  580. 

V.  Roehl,  78,  476. 

V.  Slater,  253,  256,   736. 

V.  Spencer,  661. 
Morriss  v.  Virginia   State  Ins.  Co 

543,   547,   573,   938. 
Morrissey  v.  Dean,  554. 
Morrow  v.  Morgan,  146. 
Mors  V.   Stanton,  271. 
Morse  v.  Byam,  930. 

V.  Copeland,   1145. 

V.  Faulkner,  331. 

V.  Godfrey,    431. 

V.  Holland  Trust  Co.,  1077. 

V.  Larkin,  112. 

V.  Smith,    1105. 
Morss  V.  Burns,  700. 
Mortgage  Co.  v.   Inzer,  852. 
Morton  v.  Jones,  370,  371,  380. 

V.  Noble,   156. 
Moseby  v.  Burrow,  786. 
Mosely  v.  Crocket,  1256. 
Moser  v.  Walker,  467. 
Moses  V.  Hatfield,  336. 

V.  Home   Bldg.   &   Loan   Asso 
386. 


OF    CASES. 
are  to  Sections. 

Moses  V.  Murgatroyd,  839. 
V.  The  Clerk,  242. 
'  Moshier  v.  Norton,  516. 
Mosier  v.  Norton,  410. 
Mosley  v.   Johnson,   855. 
Moss,  In  re,  1016. 
Moss   V.  Robertson,  850. 
Mote  V.  Morton,  161. 
Mott  V.  Clark,  94,  416,  418. 
V.  Palmer,  491,  715. 
V.  Walkley,  625,  640. 
Mott   Iron  Wks.   v.   Middle   States 
Loan  Building  &  Construc- 
tion Co.,  715. 
Moulton  V.   Cornish,   180,  713,  969. 
976,   1198. 
V.  Haskell,   131. 
V.  Moulton,    270. 
V.  Sidle,  921. 
Mounce  v.  Byars,  330. 
Mount  V.  Manhattan  Co.,  683. 
V.  Morton,  433. 
V.  Potts,  478,  584,  602.   1065. 
Movan  v.  Hays,  71. 
Mower  v.  Kip,  514. 
Mowry  v.  First  Nat.  Bk.  Baraboo, 
1241. 
V.  Mowry,   599. 

V.  Sanborn,    137,  912,  920,  921, 
922,  932,  935,  942,  953,  954, 
955,  958,  959,  960. 
Moyer  v.  Dodson,  406. 

V.  Hinman,   121,  374. 
Moynusson  v.  Charlson,  1135. 
Muckeniuss   v.    Fishburne,   649. 
Mueller  v.  Light,  80,  280. 
Muhlig  V.  Fiske,  244. 
Muir   V.    Berkshire,    109. 
V.  Greene,  403. 
V.  Schenck,  418. 
Mulcahey  v.  Strauss,  43,  294. 
Mules  V.  Stehle,  1135. 
Mulford  V.  Brown,  284. 
Mulks  V.  Allen,  640. 
Mullen    V.    Gooding    Implement    & 
Hardware    Co.,   61,    62. 
.       Muller  V.   Stone,  558. 
Mullikin  v.  Mullikin,  533. 


TABLE    OF 
References  are 
MuHoy    V.    Fifth    Ward    Building 

Assoc.  515. 
Mumford  v.  American  Life  Ins.  and 
Trust  Co.,  409. 
V.  Armstrong,  539. 
V.  Murray,  878. 
Mundy    v.    Whittemore,    337,    347, 

416. 
Hunger  v.   Beard,   138. 
Munn  V.  Burges,  623,  1140. 

V.  Buyer,  1135. 
Munro  v.  Barton,  1247. 
Munroe  v.   Merchant,  85. 
Munsell  v.  Munsell,  609. 
Munson  v.  Dyett,  244,  247,  257. 
Munter    v.    Linn,    409,    410,    1003, 

1005,   1006. 
Murdock  v.  Empie,  620,  640,  646. 
V.  Ford,     102,    179,    203,    1056, 

1244. 
V.  Gifford,  492. 
Murphy  v.  Coates,  75,  1256. 

V.  Farwell,      179,      180,      1111, 

1117. 
V.  New      Hampshire      Savings 
Bank,  1135,  1236. 
Murphree  v.  Summerlin,  1177,  1221. 
Murphy  v.  Cunn,  661,  662). 
V.  Robinson,  354. 
V.  Smith,   667. 
Murray    v.    Ballou,    365,    367,    368, 
985,   1114. 
V.  Blatchford,   365. 
V.  Catlett,   138. 
V.  Emery,  598. 
V.  Etchepare,  482. 
V.  Lylburn,   365,  2,67,   368,   415, 

418,  419. 
V.  Marshall,   243. 
V.  Walker,   11. 
Murrough  v.  French,  830. 
Muscatine  Mortg.  &  T.  Co.  v.  Mc- 

Gaughey,  661. 
Muscott  V.  Woolworth,  152. 
Muser   v.    Miller,    158. 
Musgrove  v.  Nash,  760.  827. 
Mussina  v.  Bartlett,  50.  327,  963. 
Mustard  v.  Wohlford.  395. 


CASES.  1821 

to  Sections. 

Muth  V.  Goddard,  313,  324. 
Mutual    Benefit    Life   Ins.     Co.    v. 

Howell,  258. 
Mutual  Benefit  L.  Building  Co.  v. 

Jaeger,    62. 
Mutual  Fire  Ins.  Co.  v.  Barker,  938, 

944. 
Mutual  Life   Ins.   Co.   v.   Anthony, 
897,  898,  899,  909. 
V.  Balch,  418. 
V.  Bowen,    411,    858,    897,    901, 

902,  1017. 
V.  Cranwell,   402. 
V.  Dake,   190,  398. 
V.  Davies,  242. 
V.  Easton  &  A.  R.  Co.,  1196. 
V.  Hall,  416. 
V.  Hunt,   672. 
V.  Ross,  259. 
V.  Sage,    1015. 
V.  Salem,  901,  909. 
V.  Southard,  225,  755. 
V.  Sturges.  98,  99,  120. 
V.  Truchtnicht,    833,    843.    857, 

862,  879,  889,  899. 
V.  Voorhis,  668,  703. 
Mutual  Life  Ins.  Co.  of  N.  Y.  v. 

Boughrum,  584. 
Mutual    Loan    &    Banking    Co.    v. 

Haas,  320. 
Myer  v.  Beal,  80. 

V.  Hart,   1003,  1004,  1010,  1187. 
Myers  v.  Estell,  758,  819,  792. 
V.  Pierce,  683. 
V.  Wright,  101,  102,  203. 
Myerstown   Bank  v.  Roessler,  417. 
Mygatt  V.  Coe,  683. 
Myrick  v.  Selden,  366,  380. 
Myton  V.  Davenport,  792,  801. 

N. 

N.  &  C.  Bridge  Co.  v.  Douglass,  166. 
Naar  v.  Union  and  Essex  Land  Co., 

220.  227,  242.  247. 
Nagle  V.  Macy,  113,  967,  1027. 

V.  Taggart.  267. 
Nailer  v.  Stanley,  584. 


1822  TABLE    OF 

References  are 
Nan  V.  Burnette.  961. 
Napier  v.  Elam,  456. 
Nash  V.  Northwest  Land  Co.,  704, 

1247. 
V.  Wetmore,  1147,  1217. 
Nashville  &  D.  R.  Co.  v.  Orr,  95, 

100,  203. 
Nason  v.  Luddington,  510. 
Natchez  v.  Minor,  422. 
Nathan  v.   Brand,  1006. 
National  Bank  v.  Dayton,  430,  477. 

V.  Godfrey,    580. 
National   Bnk.  of   Cal.  v.  Mulford, 

1003. 
National  Bnk.  of  Com.  v.  Kinhead, 

660. 
V.  Lock,  710. 
National  Bank  of  Newark  v.  Davis, 

477. 
National  Bank  of  Newburgh  v.  Big- 

ler,  473. 
National  Bank  of  Norwalk  v.  Lan- 
ier, 331. 
National  Bank  of  Republic  v.  Cox, 

436. 
National  Black  River  Bank  v.  Wall, 

533. 
National   Fire    Ins.    Co.    v.    Broad- 
bent,   823. 
V.  Loomis,  611. 
V.  McKay,  13,  147,  227,  412,  442. 

444,  449,  501. 
National  Foundry  &  Pipe  Works  v. 

Oconto  City  W.   Sup.   Co., 

1086. 
National  Invest.  Co.  v.  Nordin,  738. 
National    Life    Ins.    Co.    v.    Butler, 

58,  62. 
National  Loan  &  Invest.  Co.  v.  Dor- 

enblaser,  918. 
National  Mutual   Building  &  Loan 

Asso.     V.     Houston,     1206, 

1207. 
National  Permanent  Mutual  Benef. 

Bldg.  Soc.  V.  Paper,  1135. 
v.  Raper,   1143. 
National   State  Bank  v.   Davis,  67. 
V.  Hibbard,  592,  905. 


CASES. 
to  Sections. 

Nau  V.  Brunette,  928. 
Naughton  v.  Vion,  354. 
Naylor  v.  Colville,  1105. 
Nazro  V.  Fuller,  49. 
Neal  V.  Gillaspy,  710. 

V.  Perkerson,  451. 
Neale  v.  Albertson,  518. 

V.  Bealing,  785,   788. 
Nealis  v.  Bussing,  790. 
Neate  v.  Marlborough,  1087. 
Nebeker  v.  Cutsinger,  400. 
Nebraska  Cent.  Bldg.  &  L.  Asso.  v. 

McCandless,  438. 
Nebraska   Land,    Stock-Growing  & 
Invest.  Co.  v.  Cutting,  661. 

V.  McKinley,   Lanning   Loan  & 
Trust  Co.,  547. 
Nebraska  Loan  &  Building  Asso.  v. 

Marshall,  537,  540. 
Nebraska  Loan  &  T.  Co.  v.  Hamer, 
540,  556,  628,  630,  657,  664. 
Neefus  v.  Vandeveer,  409. 
Neel  V.  Carson,  640. 
Neele  v.  Berryhill,  871. 
Neely's  Appeal,  7i. 
Negus,  In  re,  67. 

Nehall  v.  Sherman,  Clay  &  Co.,  ZZ7. 
Neilson  v.  Neilson,  609. 
Neiman  v.  Wheeler,  996. 
Neimcewicz  v.  Gahn,  884. 
Neitzel  v.  Hunter,  362. 
Nellis  V.  Lathrop,  712. 
Nellons  v.  Truax,  584. 
Nelms  v.  Kennon,  1186. 

V.  Rogers,  466. 
Nelson  v.  Ailing,  540. 

V.  Bostwick,  49,  344. 

V.  Central  Land  Co.,  563. 

V.  Everett,  1005. 

V.  Hagerstown  Bank,  842. 

V.  Hall,  434. 

v.  Montgomery,  1002. 

V.  Neb.  L.  &  Trust  Co.,  628. 

V.  Pinegar,  302. 

V.  Sarre,  1228. 
Nelthrop  v.  Hill,  235. 
Neptune  Ins.  Co.  v.  Dorsey,  607. 
Nerpel's  Appeal,  562. 


TABLE    OF    CASES. 

References  are  to  Sections. 


1823 


Nesbit  V.  Hanway,  1111,  1116,  1220, 

1244. 
V.  Knowlton  Hall  Co.,  665. 
Xestor  V.  Davis.  1177. 
Nevin  v.  Lulu  &  W.  Silver  Min.  Co., 

967. 
Nevitt  V.  Bacon,  74,  75,  78,  79,  80. 
New  England  Loan  &  Trust  Co.  v. 

Stephens.  599. 
New    England    Mortgage    Security 

Co.  V.  Smith,  660,  663. 
New  England  Trust  Co.  v.   Nash., 

746. 
New  Jersey  Building,  Loan   &  In- 
vestment Co.  v.  Schatzkin, 

730. 
New  Orleans  Nat.  Bkg.  Asso.  v.  Le 

Breton,  259,  694. 
New  Orleans  P.  R.  Co.  v.  Parker, 

101. 
New   York   Baptist   University   for 

Ministerial     Education     v. 

Atwell.  550. 
New  York  Building,  Loan  Banking 

Co.   V.   Kellogg,   395,   792. 
New   York   Cent.    Ins.  v.    National 

Protection  Ins.   Co.,  609. 
New    York    City    Baptist    Mission 

Soc.  V.  Tabernacle  Baptist 

Church,  58,  278. 
New  York  Dry  Dock  Co.  v.  Amer- 
ican  L.   Ins.   &  Trust   Co., 

409. 
New  York  Eastern  C.  &  B.  Asso. 

V.    Bishop,    624. 
New  York  Fire  Ins.  Co.  v.  Burrell 

996. 
New  York  Fourth  Nat.  Bank's  Ap- 
peal,  857. 
New  York  Franklinite  Co.  v.  Ames, 

168. 
New  York   Insurance  &  Trust  Co. 

V.   Milnor,  494. 
New  York  Life  Insurance  Company 

V.  Aitkin,  740. 
V.  Glass,  818. 
V.  Maver.  873,  877,  879,  880. 


New   York   Life    Insurance   Co.   v. 
Murphy,  628,  640. 
V.  White,  398. 
New  York  Life  Ins.  &  Trust  Co.  v. 
Bailey,  147. 
V.  Covert,  72,  80,  81,  474. 
V.  Cutler,  584,  723,  726. 
v.  Milnor,  584,  592. 
V.  Rand,  725.  726,  728. 
V.  Staats,  398. 
V.  Vanderbilt,   855,    1017. 
New    York    Security    &    T.    Co.    v. 
Saratoga  Gas  &  E.  L.  Co., 
62. 
New  York  State  Bank  v.  Fletcher, 

1190. 
New  York  Trust  Co.  v.  Langcliffe 

Coal  Co.,  19. 
New    York    Trust    &   Loan    Co.   y. 

Helmer,  412. 
New  York  Water  Co.  v.  Crow,  683. 
Newall  V.  Wright,  46,  90,  1180. 
Newark   Savings   Inst.   v.    Forman, 

220,  242. 
Newberry  v.  Garland,  267. 
Newburg  v.   Coyne,   1006. 
Nevvburn  v.  Bass,  912. 
Newby  V.  Caldwell,  485. 
Newcomb    v.    Bonham,    1029,    1036, 
1042,   1045. 
V.  Dewey,   179,   180,   184. 
V.  Hale.  741,  742,  983. 
V.  St.  Peter's  Church,  75. 
Newell  V.  Hill,  1145. 
V.  Pennick,  1074. 
V.  Whigham,  727. 
Newhall    v.    Lynn    Bank,    155,   841, 

880,  1126. 
Newhart  v.  Peters,  154. 
Newhouse  v.  Redwood,  81. 
Newins  v.  Baird,  524. 
Newkirk  v.  Burson.  161,  234. 
Newlin  v.  Duncan,  81. 
Newman  v.  Barton,  235. 
v.  Chapman,  198. 
v.  Hammond,    765. 
v.  Home  Ins.  Co.,  213,  484. 
V.  Hook,  458. 


1824  TABLE   OF 

References  are 
Newman  v.  Kershaw,  410. 

V.  Locke,  1135. 

V.  Ogden,  944. 

V.  Overbaugh,  417. 

V.  Stuart,  36. 
Newport    &    Cinn.    Bridge    Co.    v. 

Douglass,  793. 
Newsam  v.  Finch,  70,  467. 
Newton  v.  Cook,  1134,  1205. 

V.  Earl  of  Egmont,   168. 

V.  Evers,  459. 

V.  Gage,  385. 

V.  Manwarring,  401. 

V.  Marshall,  362. 

V.  Stanley,  120,  122. 

V.  Wales,  466. 
Newton  Twp.  Bldg.  &  Loan  Assoc. 

V.  Boyer,  328. 
Ney  V.  Patterson,  1208. 
Niagara  Bank  v.  Roosevelt,  182,  184, 

416,  1035. 
Niccolls  V.  Peninsular  Stove  Co.,  58, 

59. 
Nichlos  V.  Smith,  11. 
Nichol  V.  Henry,  337,  341,  345,  362. 
Nicholl  V.  Nicholl,  620,  622. 
Nicholls  V.  Bowes,  344. 
Nichols  V.  Cosset,  409,  410. 

V.  Flagg,  640. 

V.  Foster,  718,  784. 

V.  Holgate,  183. 

V.  Hoxie,  941. 

V.  Lappin,  717. 

V.  Lee,  416. 

V.  Nichols,   777. 

V.  Marquess,  1220. 

V.  Otto,  323,  623,  1145. 

V.  Perry  P.  A.  Co.,  792. 

V.  Randall.  146. 

V.  Smith,  11,  273. 

V.  Tingstad,  712,  951,  1247. 

V.  Weed  Sewing  Mach  Co.  406. 
Nicholson  v.  Cinque,  49,  466. 

V.  Hooper,  69,  457. 
Nicks  V.  Martindale,  76. 
Nicoll  V.   Trustees   of   Huntington, 

985. 
Niebur  v.  Schreyer,  372,  381. 


CASES. 
to  Sections. 

Niehaus  v.  Faul,  878. 
Niemeyer  v.  Brooks,  344. 
Niles  V.  Harmon,  584,  591. 

V.  Parker,  657. 

V.  Parks,  619. 
Nimrock  v.  Scanlin,  155. 
Nitro-Phosphate  Syndicate  v.  John- 
son, 640. 
Niven  v.  Belknap,  456,  1061,  1246. 
Nix  V.  Draughon,  283. 

V.  Williams,  567,  576,  618,  628. 

V.  Thackaberry,  567. 
Nixon  V.  Haslett,  453. 
Noble  V.  Bosworth,  714. 

V.  Graham,  1047. 

V.  Greer,  58,  59. 
Nodine  v.  Greenfield,  163,  165,  166, 

167,  170. 
Noeker  v.  Howry  851. 
Noel  V.  Robinson,  235. 
Noell  V.  Gaines,  51,  54,  326,  583. 
Noerr  v.  Schmidt,  343. 
Noland  v.  White,  545. 
Nolte  v.  Libbert,  120.  358. 

v.  Morgan,  828. 
Noonan  v.  Brennemann,  162. 

V.  Lee,  422,  72,7. 
Nooner  v.  Short,  213,  341. 
Nopson  V.  Horton,   1185,  1204. 
Norcum  v.  Sheahan,  395. 
Norman  v.  Hallsey,  852. 
Norris  v.  Marshall,  1234. 

v.  Morrison,  1211. 

V.  Norris,  406. 

V.  Ryno,  476. 

V.  Wood,  453. 
Norrish  v.  Marshall,  301. 
North    American    Fire    Ins.   Co.   v. 

Handy,   253. 
North  American  Gutta  Percha  Co., 

In  re,  77 \. 
North  Brookfield  Savings   Bank  v. 

Flanders,  962. 
North  Dakota  Horse  &  Cattle  Co.  v. 

Serumgard,  1137. 
North  End  Savings  Bank  v.  Snow, 
598. 


TABLE    OF    CASES. 
References  are  to  Sections. 
North    Hudson    County    R.    Co.    v.       Note  v.  Morton 


1825 


Booraem,  294,    1180. 
North  River  Bank  v.  Rogers,  335, 

347,  393. 
Northern  Counties  of  England  Fire 

Ins.  Co.  V.  Whipp,  1246. 
Northern       Counties       Investment 

Trust  V.  Cadman,  547. 
Northern    Pennsylvania    R.    Co.    v, 

Adams,  53. 
Northern  Trust  Co.  v.  Crystal  Lake 

Cemetery  Ass'c,  502. 
Northland  Produce  Co.  v.  Stephens, 

476. 
Northrop  v.  Sumney,  434,  482. 
Northrup  v.  Wheeler,  155,  158,  922, 

924. 
Northwestern  Barb-Wire  Company 

v.  Randolph,  743. 
Northwestern    College    v.    Schreck, 

540,  552. 
Northwestern  Counties  Invst.  Trust 

v.  Wilson,  535. 
Northwestern  Mortgage  Trust  Co. 

V.  Bradley,  944. 
Northwestern  Mut.  Life  Ins.  Co.  v. 
Butler,  43. 
V.  Keith,  7Z7. 
V.  Mulvihill,  537. 
V.  Neeves,  553. 
Northwestern    Trust    Co.   v.   Ryan, 

1133. 
Norton  v.  Colby,  81. 
V.  Ellam,  53. 
V.  Joy,  211. 
V.  Lewis,  146,  584. 
V.  Ohrns,  2,7,  49,  133. 
V.  Palmer,  80,  966. 
V.  Patee,  403. 
V.  Rose,  418. 
V.  Sharp,   1129. 
V.  Soule,  110. 
V.  Taylor,  632.  676,  686. 
V.  Warner,   104,   105,   112,  202. 
V.  Whiting,  1019. 
Norway  v.  Rowe,  768. 
Norwood  v.  DeHart,  247,  746. 
v.  Norwood,   178. 

Mortg.  Vol.  II.— 115. 


163. 

Nott  V.  Hill,  506. 
Nottingham  v.  Calvert,  156. 
Nourse  v.  Henshaw,  231. 

v.  Jennings,  400. 
Novosietski  v.  Wakefield,  1237. 
Noyes  v.  Anderson,  58. 

V.  Barnet,  101,  102,  327. 

V.  Clark,  56,  58,  64. 

V.  Hall,  1056,  nil. 

V.  Sawyer,  97. 

V.  Sturdivant,  74. 

V.  Terry,  490. 
Nugent  V.  Nugent,  619,  625,  627. 

V.  Riley,  1036,  1145. 
Nunemacher  v.  Ingle,  964. 
Nutall  V.  Brannin,  473. 
Nute  V.  Hamilton  Mut.  L.  Ins.  Co. 

130. 
Nutt  V.  Cuming,  871. 
Nye  V.  Rogers,  552,  663. 

o. 

Oakford  v.  Robinson,  146. 
Oakley  v.   Patterson  Bank,  762. 

v.  Shaw,   661. 
Oakman  v.  Walker,  1191. 
Gates  V.  Shuey,  482. 
Ober  V.  Gallagher,  221. 
Oberle  v.  Lerch,  642. 
O'Brian  v.  Fry.  713.  725. 
O'Brien  v.  Elliott,  351. 

V.  General  Synod  of  Reformed 
Church.  609. 

V.  Hulfish,  424. 

V.  Kluever,  712. 

v.  Moffit,  66. 
Ocean  Ins.  Co.  v.  Portsmouth  Mar- 
ine Ry.  Co.  35. 
Ocmulgee  Building  &  Loan  Assoc. 

V.  Thomson,  515. 
O'Conner  v.  Nadel,  137. 
O'Connor  v.  Arnold,  982. 

V.  Felix,  667. 

V.  Ga.  R.  R.  Bank,  871. 

V.  Keenan,  573. 

V.  Meskill,  43,  61. 


1826 


TABLE    OF    CASES. 
References  are  to  Sections. 


O'Connor  v.  Shipman,  58,  64. 

V.  Stone,  337. 
Oconto  Co.  V.  Hall,  333. 
Odell  V.  De  Witt,  366. 

V.  Hoyt,   54. 

V.  Montross,  1047,  1048,  1053. 
Odell  V.  Wilson,  495. 
O'Donnell  v.  Lindsay,  539,  542,  573, 

576,  605,  640. 
O'Dougherty    v.    Remington    Paper 

Co.,  105. 
Oertel  v.  Pierce,  1145. 
O'Fallon  v.  Clopton,  640,  967. 
Officer  V.  Burchell,  253,  742. 
Ogborn  v.  Eliason,  335,  340,   1003. 
Ogden  V.  Bodle,  273. 

V.  Glidden,  584. 

V.  Jackson,  377. 

V.  Padle,   11. 

V.  Stevens,   1145,   1147. 

V.  Walters,  671. 
Ogdensburg  &  L.  C.  R.  Co.  v.  Ver- 
mont &  C.  R.  Co.,  271. 
Ogdensburgh  Bank  v.  Arnold,  792. 
Ogilvie  V.  Richardson,  664. 
Oglesby   V.    Pearce,    725. 
O'Hara   v.    Brophy,   260,   261,   986, 

994,   1001. 
Ohio  Life  &  Ins.  Trust  Co.  v.  Reed- 

er  67. 
Ohio  Life  Ins.  &  Trust  Co.  v.  Winn, 

115. 
Ohio  &  M.  R.  Co.  V.  Kasson,  411. 
Ohling  V.  Luitgens,   146,   147,   1112. 
Olcott  V.   Crittenden,  914. 

V.  Headrick,  697,  843. 

V.  Maclean,   271. 

V.  Robinson,  547. 

V.  Scales,  81. 
Old  Colony  Trust  Co.  v.  Allentown 
&  B.  R.  J.  Co.,  25. 

V.  Great  White  Spirit  Co.,  660. 
Older  V.  Russell,  178. 
Oldfield  V.  Cobbett,  797. 
Oldham  v.  First   Nat.   Bank.   762. 

V.  Wilmington  Bank,  800. 


Olds  V.  Cummings,  94,  115,  417. 
O'Leary  v.  Snediker,  392. 
Olinger  v.  Liddle,  355. 
Oliphant  v.  Burns,  470,  1185. 
Oliver  v.  Decatur,  798,  799. 
Olmsted  v.  Elder,  109,  133,  606. 
Olney  v.  Tanner,  783. 
Olson  V.  Paul,  153,  375. 
Omaha  Loan  &  Trust  Co.  v.  Bert- 
rand,  537. 

V.  Kitton,  56. 

V.  Luellen,  476. 

V.  Lynch,  567. 
Omaha  &  St.  L.  R.  Co.  v.  O'Neill, 

136. 
Omaly  v.  Swan,  17,  308,  736. 
O'Mahoney    v.    Belmont,    768,    769, 

780,  781,  810,  819,  824. 
Omohundro  v.  Henson,  198. 
O'Neal  V.  Hart,  1003. 

V.  Seixas,  115.  120. 
O'Neil  V.  Capel,  1029. 
O'Neill  v.  Clarke,  251. 
Ontario  Bank  v.  Lansing,  640. 

v.  Strong,  522. 
Ontario  Land  &  Imp.  Co.  v.  Bed- 
ford, 573. 
Opdyke  v.  Bartles,  156,  1126. 
Openshaw  v.  Dean,  324. 
Oppenheimer   v.   Walker,   594,   833, 

855,   870,   886,   889,    1019. 
Opperman  v.  McGown,  146. 
Orange  Growers'  Bank  v.  Duncan, 

1010. 
Orchard  v.  Hughes,  733,  737. 
Ord  V.   Bartlett,  482. 

v.  Heming,  1247. 

V.  McKee.  115,  345. 

V.  Noel,  574. 

V.  Smith,  1256. 
Ordinary  v.  Steedman,  73. 
Ormerod  v.  Dearman,  406. 
Ormsby  v.  Louisville,  1141. 

V.  Terry,  675. 
O'Rourke  v.  O'Connor,  872. 
Orphan  Asylum,  The,  v.  McCartee, 
762,  799. 


TABLE    OF 

References  are 
Orr  V.  Blackwell,  942. 

V.  Stewart,  451,  455. 

V.  White,   454. 
Orrick  v.  Durham,  416. 
Orth  V.  Jennings,  431,  872. 
Ortengren  v.  Rice,  792,  798. 
Orton  V.  Knob,  1036. 

V.  Walker,  1031. 
Orvis  V.  Powell,  591,   1041,  1135. 
Osborn  v.  Glasscock,  683,  701. 

V.  Heyer,  810. 

V.  McClelland,  416. 

V.  McCloskey,  259. 

V.  Merwin,  954,  958,  960. 

V.  Nelson,  267. 

V.  Robbins,  439. 

V.  Williams.  290. 
Osborne  v.  Crump,  138,  150. 

V.  Ketcham,  43. 

V.  Tunis,  973. 
Osbourn  v.  Fallows,  127,  195,  1234. 
Osgood  V.  Franklin,  640. 

V.  Stevens,  218. 
Osterberg  v.  Union  Trust  Co.,  670. 
Ostrander  v.  Hart,  172,  923. 
Ostrom  V.   McCann.    137,    145,    147, 

150,   152,   177,  376,  610. 
O'Sullivan  v.  Buckner,  669. 
Otis  V.  McMillan,  940,  1105. 

V.  Sill,  874. 
Ottawa  Northern   Plank  R.   Co.  v. 

Murray,  54,  58,  176. 
Otter  V.  Vaux,  566. 
Otto  V.  Long,  403. 
Ottumwa  Woolen  Mill  Co.  v.  Haw- 
ley,  490,  716. 
Outtrin  V.  Graves,  945. 
Over  V.  Carolus,   1029. 
Overall  v.  Ellis,  105. 
Overbach  v.  Heermance,  395. 
Overby   v.   Fayetteville   Building  & 

Loan  Assoc,  518. 
Overton  v.  Memphis  &  L.  R.  Co., 

762. 
Owen  V.  Blake,   1177. 

V.  Cawley,  232. 

V.  Granger,  36. 

V.  Roman,    760,    763. 


CASES.  1827 

to  Sections. 

Owen  V.  Kilpatrick,  1088,  1105. 

V.  Occidenal    Bldg.    L.    Assoc.;. 
62. 

V.  Potter,  228. 

V.  Slatter,  1141. 

V.  Walter,  36.     ' 
Owens  V.  Green,  406. 

V.  Hornthal,  610.  645. 
Owinger  v.   Thompson,  499. 
Owings  v.  Beall,  29,  36. 
Oxley  Stave  Co.  v.  Butler  Co.,  623. 
Ozmun  V.  Reynolds,  80. 

P. 

P.  &  M.  Bank  v.  Willis,   1033. 
Pabodie   v.    King,   467. 
Pace  V.   Chadderdon,  85. 
Pacific  Iron  Works  v.  Newhall,  50O. 
Pacific   Mut.   L.   Ins.   Co.  v.   Beck, 

718. 
Packard  v.  Kinzie  Ave.  H.  Co.,  751. 
Packer  v.  Rochester  &  S.  R.  Co.,  1, 

147,  579,  721. 
Page   V.    Brewster,    1184. 

V.  Foster,    1185,    1197. 

V.  Kress,   626,   628. 

V.  Pierce,    93. 

V.  Thomas,  843,  850. 
Paget  V.   Ede,  36. 
Paige   V.    Chapman,    106. 
Paine  v.  Jones,  243,  244,  250,  746. 

V.  Upton,  434. 

V.  Woods,  294. 
Painter  v.   Hogue,  485. 
Palk  V.   Clinton,  88,    137,    140,    141, 

1105,   1179,   1208. 
Palmer,  In  re,  640. 
Palmer  v.    Bntler,   82,    1256. 

V.  Davis,    267. 

v.  Fowley,  914,   1185. 

v.  Gumrey,  1036. 

V.  McCormick,  628. 

v.  Mead,  14,  338.  482,  966. 

v.  Palmer,  519,  521,  900. 

V.  Stevens,  1234. 

V.  Windrom,  351,  432. 

v.  Yager,  212,  484. 


1828  TABLE    OF 

References  are 
Palmeter  v.  Carey,  743,   1006. 
Pamperin    v.    Scanlan,    1087. 
Pancake  v.  Caufmann,  1225. 
Pancoast  v.  Duval,  576. 

V.  Travelers'      Insurance      Co., 
213,  452,  488. 
Panton  v.  Zebley,  785. 
Pardee  v.  Treat,  246,  248,  249. 

V.  Van  Anken,  409,  1035,  1097, 
1105. 
Parfitt  V.  Warner,  650. 
Paris   V.   Hulett,    17,  964. 
Parish  v.  Whitney,  1145. 
Park  V.  Prendergast,  459. 
Parker  v.  Banks,  74,  78,  456. 

V.  Beasley,  583. 

V.  Butcher,  515. 

V.  Child,  610,  1056,  1214. 

V.  Collins,  1015. 

V.  D'Acres,     637,     1030,     1137, 
1173. 

V.  Fuller,  211. 

V.  Hartt,  424,  440,  448. 

V.  Jenks,  244,  750. 

V.  Lincoln,  174. 

V.  Marco,  397. 

V.  Mercer,  103. 

V.  Oacres,  1135. 

V.  Prewitt,  1252. 

V.  Rodman,  677. 

V.  Shuford,  81. 

V.  St.  Martin,  1123,  1200. 

V.  Starr,  710. 

V.  Storts,  717. 

V.  Teas,  359. 

V.  Williams,  777. 
Parkham  v.   Welch,  479,   584,   602, 

1065,  1180. 
Parkinson  v.  Jacobson,  495. 

V.  Sherman,  245,  411,  459,  495, 
745. 
Parkhurst  v.  Cory,  618,  644. 

V.  Cummings,  1178. 

V.  Kinsman,  797. 

V.  Van  Cortland,  71,  1246. 
Parkman   v.   Welch,   479,   584,   602, 
855,  1065,  1180,  1209. 


CASES. 
to  Sections. 
Parks  V.  Allen,  1004,  1107,  1187. 

V.  Jackson,   367,    374. 

V.  Murray,  381. 

V.  Worthington,  1032. 
Parlin  &  Orendorff  Co.  v.  Galloway, 

482. 
Parlmer  v.  Carlisle,  1234. 
Parmenter  v.  Binkley,  156. 
Parmer  v.  Parmer,  1036,  1038,  1105, 

1214. 
Parmeter  v.  Colrick,  417. 
Parnell  v.  Goff,  1205. 
Parott  v.  Hughes,  178. 
Parr  v.  Lindler,  734. 
Parrott  v.  Palmer,  69. 
Parshall's  Appeal,  1013. 
Parsons   v.   Camp,  490. 

v.  Hughes,   302. 

V.  Little,  127. 

V.  Lyman,  125,  126. 

V.  McCracken,    1251. 

V.  Noggle,  1135,  1140,  1251. 

V.  Northern  Illinois  Coal  &  L. 
Co.,  81. 

V.  Parsons,  1177. 

V.  Welles,  1213. 
Partington,  Ex  parte,  626. 
Partridge  v.  Hemenway,  302,  716. 

v.  Partridge,  91,  94. 
Passumpsic    Sav.   Bnk.  v.   Maulick, 

628.  660,  661. 
Patchin  v.  Pierce,  467. 
Paton  V.  Murray,  96,  165,  167. 
Patridge  v.  Bare,  74. 
Patten    v.    Accessory    Transit    Co., 
762,  763,  773,  812. 

V.  Bond,  1050. 

V.  Loughridge,  485. 

V.  Pepper  Hotel  Co.,  6Z,  64,  360, 
401,    1006. 
Patterson  v.  Baxley,  752. 

V.  Birdsall,    109,  409. 

V.  Brindle,   1122. 

V.  Brown,  374. 

V.  Donner,  1009. 

V.  Esterling,  456. 

v.  Yeaton.    1048. 
Pattie   v.    Wilson,   345. 


TABLE    OF 
References  are 

Patison  v.  Hull,  71. 

V.  Powers,  11,  347,  392. 

V.  Shaw,  179,  209,  213. 
Patton  V.  Moore,  302. 

V.  Smith,    187. 

V.  Taylor,  422,  500. 

V.  Thomson,  850. 

V.  Townsend,  136. 
Patty  V.  Milne,  473. 

V.  Pease,  584,  594,  602,  855. 
Paul   V.   Schofield,  662. 
Paul,   John   Lumber   Co., 

V.  Neumeister,  640. 
Paulle  V.  Wallis,  917. 
Paulling  V.  Barron,  1082. 
Paulsen  v.  Koon,  412,  417,  443,  456. 
Pawtucket  Mutual  Fire  Ins.  Co.,  v. 

Landers,   1031. 
Payn  v.  Grant,   156,  212,  214,  332, 

351,  384,  487. 
Payne  v.  Baxter,  785. 

V.  Burnham,  233. 

V.  Compton,  179. 

V.  Grant,  209. 

V.  Long-Bell  Lumb.  Co.,  1055. 

V.  Wilson,    85,   331,    1050. 
Payton  v.  McPhall,  320,  942. 
Peabody  v.  Patton,  1126. 

V.  Peabody,  133. 

V.  Roberts,  179,  180,  856,  865. 
Peachy  v.  Witter,  358,  1003. 
Peacock  v.  Evans,  640. 
Peak  V.  Phipps,  765,  824. 
Pearce  v.  Chastain,  982,  985. 

V.  Creswick,  84. 

V.  Morris,  1100,  1102. 

V.  Pearce,  678. 

V.  Savage,  1213. 

V.  Wilson,  406. 
Pearmain  v.  Massachusetts  Hospital 

Life  Ins.  Co.,  58. 
Pears  v.  Laing,  75,  81. 
Pearsall  v.  Kingsland,  409,  411. 
Pearson  v.  Badger  Lumb.  Co.,  540, 
541,  545. 

V.  Gooch,  652,  934. 

V.  Havenston,  482. 


CASES.  1829 

to  Sections. 

Pease  v.  Benson,  10. 

V.  Catlin,  75. 

V.  Norton,   1141. 

V.  Warren,  93. 
Peaslee  v.  Ridgway,  930. 
Pechaud  v.  Rinquet,  234. 
Peck  V.  Hapgood,  66. 

V.  Jenness,  765. 

V.  Knickerbocker   Ice   Co.,   177, 
681,  758. 

V.  Minot,  473. 

V.  Nallams,    75,    120,    123,    206, 
344,  350. 

V.  New  Jersey  &  N.  Y.  R.  Co., 
355,  607,  654. 

V.  New  York  &  N.  J.  R.  Co., 
355,  607,  654. 

V.  Randall,  1251. 

V.  Starks,  555,  618. 
Peck's  Appeal,  392,  964. 
Peed  V.  McKee,  406. 
Peers  v.  Davis,  71. 
Peet  V.  Cowenhoven,  779. 

v.  O'Brien,  1185. 
Peirce  v.  Goddard,  302,  714. 
Pelham  v.  Duchess  of  New  Castle, 

787,  824. 
Pell  V.  Ulmar,  133,  605,  1213. 
Pelletreau  v.  Jackson,  488,  1050. 
PelHer  v.  Gillespie,  356. 
Pelton  V.  Farmin,  212,  484. 
Pemberton  v.  Johnson,  233. 
Pence  v.  Armstrong,  359. 
Pendleton  v.  Eaton,  985. 

v.  Fay,  416. 

v.  Rowe,  54,  70. 

V.  Spear,  656. 
Pendola  v.  Alexanderson,  827. 
Penfield  v.  Goodrich,  244. 
Peninsula  Naval  Stores  Co.  v.  Cox, 

150. 
Penn  v.  Baltimore,  33. 

V.  Butler,  98. 

V.  Clemans,  1121. 

V.  Heisey,  533. 
Penn    Lumber    Co.    v     McPherson, 
441. 


1830  TABLE    OF 

References  are 

Penn's  Adm'r  v.  Tolleson,  533. 
Penn     Mutual    Life     Ins.     Co.     v. 
Creighton     Theatre     Bldg. 
Co.,  537,  620. 
Penniman  v.  Hollis,  914. 
Pennington  v.  Clifton,  334. 

V.  Hanby,  1036. 
Pennsylvania   v.    Wheeling   &   Bel- 
mont Bridge  Co.,  982,  985. 
Pennsylvania    Coal    Co.    v.    Blake, 

232,  257. 
Pennsylvania  Co.  for  Ins.  on  Lives 
and   Granting  Annuities  v. 
The  Philadelphia  &  R.  Co., 
49. 
Pennsylvania  Ins.  Co.  v.  Beaumont, 

495. 
Pennsylvania  Ins.  Co.'s  App.,  66. 
Pennsylvania   R.    Co.   v.   Allegheny 

R.   Co.,  56. 
Penouilh  v.  Abraham,  54,  557. 
Penryn     Fruit     Co.     v.     Sherman- 
Worrell  Fruit  Co.,  950. 
Penzel  v.  Brookmire,  856. 
People  V.  Albany  &  S.  R.  Co.,  772. 
V.  Alberty,  799. 
V.  Beebe,  392. 
V.  Bergen,  539,  856,  865. 
V.  Board  of   Police,  912. 
V.  Board  of  Stock  Brokers,  676. 
V.  Brooks,  787. 
V.  Canal  Appraisers,  703. 
V.  Collins,  369. 
V.  County  of  New  York,  53. 
V.  Erie  Railway  Co.  183. 
V.  Fralick,   1172. 
V.  Keyser,  120,  123. 
V.  Mayor  of  New  York,  821. 
V.  New   York   Central   R.    Co., 

654,  981. 
V.  New  York  &  S.  I.  Ferry  Co., 

703. 
V.  Northern  Pac.  R.  Co.,  259. 
V.  Norton,  772. 
V.  Security  Life   Ins.   Co.,  810. 


CASES. 
to  Sections. 

People's    Bank,    The,    v.    Hamilton 
Manufacturing  Co.,  150,   176, 
182,  183,  190,  863,  1114. 
People's  Savings  Bank  v.  Hodgon, 
712. 

V.  Wunderlick,  929. 
People's  State  Bnk.  v.  Francis,  466. 
People's   Trust   Co.   v.   Tonkonogy, 

376,  683. 
People   ex  rel.   Bethmann  v.   Bow- 
man,   1087. 

V.  Connolly,  374. 

Backus  V.  Spalding,  779. 

Bridenbecker   v.    Prescott,   928, 
935,  962. 

Oakley  v.  Blackman,  1185. 

Short  V.  Bacon,  858,  860. 
Peoria  &  S.  R.  Co.  v.  Thompson, 

1030. 
Pepper  v.  Dunlap,  327,  561. 

V.  Shepherd,  567. 
Percy  v.  Tate,  1078,  1107. 
Perdicaris  v.  Wheeler,  211. 
Perdue  v.  Aldridge,  341. 

V.  Brooks,   1243. 
Pere     Marquette     R.     R.     Co.     v. 

Graham,  722. 
Pereau  v.  Frederick,  399. 
Perine  v.  Dunn,  977,  1215. 
Perit  v.  Wallis,  514. 
Perkins  v.  Cartmell,  79. 

V.  Dibble,  1029. 

V.  Heiser,  894. 

V.  Keller,  264,  918. 

V.  Sterne,    115. 

V.  Stewart,  852,  871. 

V.  Trinity  Realty  Co.,  403. 

V.  W.  B.  Adams  &  Co.,  436. 

V.  Wood,  161,  165. 

V.  Wright,  667. 
Perkins  &  Elliott  v.  Mayfield,  1033. 
Perley  v.  Balch,  425. 

V.  Chase,  17. 
Perrett  v.  Yarsdorfer,  427. 
Perrin  v.  Fetters,  663. 


TABLE    OF 
References  are 

Perrine  v.   Poulson,   1178,   1203. 

V.  Dunn,  1236,  1237,  1245. 
Perry  v.  Barker,  17,  736. 

V.  Carr,  490,   1220. 

V.  Fisher,  56. 

V.  Griffin,  1021. 

V.  Kearns,  459. 

V.  Marston,   1256. 

V.  Ward,  598. 
Perry's  Appeal,  103,  116. 
Person  v.  Merrick,  182. 
Persons  v.  Alsip,  211. 

V.  Merrick,  211. 
Pertuit  V.  Demare,  417. 
Peru  Bridge  Co.  v.  Hendricks,  331, 

341. 
Petat  V.  Ellis,  440. 
Peter  v.  Russell,  456,  1061,  1246. 

V.  Wright,  400. 
Peters  v.  Bowman,  213,  484,  496. 

V.  Guthrie,   617. 

V.  Jamestown  Bridge  Co.,  113. 
Peterson    v.    Chemical    Bank,    125, 
126. 

V.  Emmerson,  708. 

V.  Johnson,  57,  446. 

V.  Oleson.    90. 

V.  Reid,  445. 
Peto  V.   Hammond,    141,    146. 
Petry    v.    Ambrosher,    139.    146. 
Pettengill    v.    Evans,    85. 
Pettibone  v.    Edwards,    101,   203. 
Pettingill  V.  Hubbell,  966,  972,  976. 
Pettit  V.  Black,  1185. 
Petteys  v.  Comer,  352. 
Pettus  V.  Gault,  489. 
Petty  V.    Mays,   659. 
Peugh   V.   Davis,    1025,    1029,    1036, 
1037,  1038,  1039,  1047,  1214. 
Pfaudler  v.   Sargent,   1021. 
Pfenninghausen  v.  Shearer,  54,  464. 
Pharis  v.  Surrett,  294,  495. 
Phelan  v.  Boylan.  609. 

V.  Downs,  665. 

V.  lona  Sav.  Bank,  534. 

V.  Olney,  102. 
Phelps  V.  Cole,  788. 

V.  Ellsworth,    117. 


CASES.  1831 

to  Sections. 

Phelps  V.  Holker,  35. 

V.  Mayers,  43. 

V.  Phelps,  271. 

V.  Townsend,  1145. 

V.  Western  Realty  Co.,  940. 

V.  Woods,  986. 
Philadelphia  Mortgage  &  Trust  Co. 
V.     Buckstaff     Bros.     Mfg. 
Co.,  661. 

V.  Hutchins,  661. 

V.  Oyler,  797. 
Philadelphia  Savings  Fund  Society 

V.  Lasher,  61. 
Philbrooks  v.  McEwen,  387,  402. 
Philips  V.  Bank  of  Lewistown,  94. 

V.  Crippen,  966. 

V.  Eiland,  792. 

V.  Green,  395. 

V.  Hulsizer,  1243. 

V.  Sinclair,  1251. 

V.  Taylor,  54,  55. 

V.  Wilcox,  667. 

V.  Winslow,  1116. 
PhiUips  V.  Hagart,  1115. 
Phinney  v.  Broschell,  263. 

V.  Day,  714. 
Phipps    V.     Bishop     of     Bath    and 

Wells,  813,  816. 
Phoenix  v.  Clark,  302. 
Phoenix  Ins.  Co.  v.  Hoffheimer,  423. 
Phoenix     Mut.     Life     Ins.     Co.     v. 
Grant,  806,  821. 

V.  Sparks,  544. 
Phosphate    Syndicate    v.    Johnson, 

618. 
Phyfe  V.  Riley,  85,  1121. 
Piatt   V.   Oliver,  609. 
Pickett  v.  Morris,  418. 
Pidcock  v.  Melick,  382,  725. 
Pidgeon  v.  Trustees  of  Schools,  459. 
Piel  V.  Baryer,  670. 
Pierce  v.  Balkam,  66,  333. 

V.  Brown,    120. 

V.  Chance,  1133. 

V.  Coryn,    417. 

V.  Faunce,  416. 

V.  George,  490. 

V.  Goldesberrv,  467. 


1832  TABLE    OF 

References  are 

Pierce  v.  Grimley,  311,  319. 

V.  Kneeland,  1008. 

V.  Le  Monier,  1234. 

V.  Potter,  50,  579. 

V.  Reed,  547. 

V.  Shaw,  102,  103. 

V.  Tiersch,  421,  424,  429,  448. 
Pierrepont  v.  Lovelass,  1021. 
Pierson  v.  Clayes,  978. 

V.  Green,  407. 
Pigot's  Case,  399. 
Pike  V.  Brown,  1145. 

V.  Collins,  120,  360. 

V.  Galvin,  452. 

V.  Gleason,   305. 

V.  Goodnow,  81,  474,  584. 

V.  Seiter,  244. 
Pillow  V.  Sentelle,  161,  740. 
Pilmer  v.  State  Bank,  71. 
Pinckney  v.  Barrage,  1251, 
Pine  V.  Shannon,  202. 
Pinnel's  Case,  467. 
Pinnell  v.  Boyd,  460,  461. 
Pinney  v.  Merchants'  Nat.  Bnk.  683. 
Pioneer  Sav.  &  L.  Co.  v.  Freeburg, 

610. 
Piot  V.  Davis,  213. 
Piser  V.  Lockwood,  263,  667. 
Pitcher  v.  Dove,  454. 
Pitman    v.    Thornton,    1215,    1220, 

1235. 
Pitt  V.  Amend,  623. 
Pittman  v.  Johnson,  389. 
Pitts  v.  Aldrich,  155,  1126. 

V.  Amer.  Freehold  Land  Mortg. 
Co.,  944. 
Pitzelle  V.  Cohn,   1003. 
Pitzer  V.  Burns,  73,  75,  80. 
Pizer  V.  Herzig,  64. 
Place  V.  Conklin,  406. 

V.  Union  Express  Co.,  49. 
Planters'  Bank  v.  Douglass,  67,  90. 
Plato  V.  Roe,  1029,  1031,  1036. 
Piatt  V.  Bright,  294. 
V.     Finck,  667. 
V.  Gilchrist,    422,    496,    500. 
V.  Graham,  464. 
Y.  Mathews,  372. 


CASES. 
to  Sections. 
Piatt  V.  Newcomb,  453. 

V.  Smith,  67. 

V.  Squire,  95,   1100. 
Play ford  v.  Play ford,  1130. 
Plowman  v.  Riddle,  105. 
Plum  v.  Studebaker  Bros.  Mfg.  Co., 

566. 
Plumb  v.  Thompson,  866. 
Plumer  v.  Plumer,  490. 
Plummet  v.  Doughty,  89,  120,  360. 

V.  Park,  58,  61. 
Pee  V.   Dixon,    598. 
Poett   V.    Stearns,    341. 
Pogue  V.  Clark,  101. 
Point  Breeze  Ferry  &  Imp.  Co.  v. 

Bragaw,  291,  855. 

Polhemus  v.  Princilla,  547,  640,  651. 

Polk  V.  Mitchell,  1220,  1235. 

Pollard  v.  American  Freehold  Land 

Mortgage  Co.,  516. 

V.  Harlow,    1116. 

V.  Noyes,   1211. 
Policy  V.  Seymour,  839. 
Pollock  V.  Maison,  80. 

V.  Watson,  79. 
Pomeroy  v.  Winship,  966. 

V.  Woodward,   54. 
Pond  V.  Causdell,  446. 

v.  Clarke,    67. 

V.  Smith,   442. 
Ponder  v.  Tate,  762. 
Pool  v.  Horton,  212. 
Poole  v.  French,  43. 

v.  Johnson.  1189,  1198,  1206. 
Poore  v.  Clarke,  88. 
Pope  V.   Barrage,  941. 

v.  Durant,  43,  58. 

V.  Jacobus,  114. 

V.  North,    158. 

V.  Perault,  90S. 
Popkins   V.   Bamstead,    156,   351. 
Port  V.  Embree,  403. 

V.  Jackson,  67. 
Porter  v.  Barclay,  1114. 

V.  Clark,  783. 

V.  Clements,  100,  203. 

V.  Hamil,    88,    209. 

V.  Kilgore,    147,    148. 


TABLE    OF 
References  are 

Porter  v.   Lord.  Z6. 

V.  Muller,  146. 

V.  Parmle}-,  239. 

V.  Pico,  376. 

V.  Pierce,  1141. 

V.  Pillsbury,    17,   736. 

V.  Reid,  434,  522. 

V.  Trail.   125. 

V.  Williams,  759,  783,  786. 

V.  Wheeler,  276. 
Portland  Bank  v.  Maine  Bank,  1141. 
Post  V.  Arnot,  948. 

V.  Bernheimer,  676. 

V.  Dart,   411,   459. 

V.  Dorr,  759,  795,  809,  817,  827. 

V.  Leet,  667. 

V.  Smith,  537. 

Y.  Springsted,  382,  475. 

V.  Tradesmen's  Bank,  239. 
Posten  V.  Miller.   1026,  1214. 
Poston  V.  Eubank,  589,  1209. 
Potter  V.  Crandall,  116. 

V.  Cromwell,  491,  714. 

V.  Ft.   Madison   Loan  &  Trust 
Bldg.  Ass'c,  1145. 

y.  Lynch,  547. 

V.  Luther,  605. 

V.  Rowland,  369,  Z77,  378,  379. 

V.  Schaffer,  1177,  1183. 
Potts   V.    Blackwell,    416. 

V.  New  Jersey  Arms  Co.,  211, 
490. 
Poughkeepsie     Savings      Bank     v. 

Winn,  831. 
Powell  V.  Clark,  434. 

V.  Harrison,  890. 

V.  Hunt,  411. 

V.  Jeffries,  431. 

V.  Monson,  71,  492. 

V.  Pattison,  733,  735. 

V.  Pierce,  662. 

Y.  Quinn,  799. 

V.  Ross,  155,  159. 

Y.  Smith,  67. 

V.  Starr.    385. 

Y.  Tuttle.  133,  604,  605,  912. 

v.  Walhvorth,  512. 


CASES.  1833 

to  Sections. 

Powell  V.  Williams.  1033,  1206,  1214. 

V.  Wright,  168. 
Power  V.  Lester,  134. 
Powers    V.    Andrews,     1040,     1052, 
1082,  1105. 

V.  Dennison,  714. 

V.  Gold  Lumber  Co.  1051,  1121, 
1139,    1191. 

V.  Robinson,  1087. 

V.  Trenor,  528. 
Poweshiek  Co.  v.  Dennison,  50,  327, 

579,  683,  933. 
Prahl  V.  Rogers,  722,  725. 
Pratt  V.  Bank  of  Bennington,  115. 

V.  Conway,  598. 

V.  Frear,   184,   1244. 

V.  Freat,  1111. 

V.  Hoag.  381. 

V.  Huggins,  80. 

V.  Pratt,  190. 

V.  Ramsdell,  985,  996,  997. 

V.  Stiles,  521,  986,  988,  1001. 

V.  Tinkcom,  918. 

V.  Waterhouse,  573. 
Preble  v.  Conger,  460. 
Prentice  v.  Brimhall,  743. 
Prentis  v.  Richardson's  Estate,  735. 
Prentiss  v.  Cornell,  174,  672. 
Presbyterian   Corporations  v.  Wal- 
lace, 584. 
Preschbaker  v.  Feaman,  1029,  103a 
Prescott  V.  Ellingwood,  93. 

V.  Trueman.  375. 

V.  Tufts,  679. 
President,  etc.,  of  Schuylkill  Navi- 
gation   Co.    V.    Theoburn, 
294. 
Prestman  v.   Mason,  640. 
Preston  v.   Briggs,  714. 

V.  Henning,  467. 

V.  Hodgen,  102,  203,  1088. 

V.  Loughran,  172. 

V.  Morris,  115,  416. 

V.  Tubbin,  380. 
Prevost  V.  Roediger,  628. 
Price,  Matter  of,  174. 
Price  V.  Blankenship,  839,  852. 

V.  Citizens'  State  Bnk.,  662. 


1834  TABLE 

References 
Price  V.  Cole,  239. 

V.  Cutts,  331. 

V.  Dowdy,  792,  793. 

V.  Fenn,  721. 

V.  Lawton,  496. 

V.  Moxon,  623. 

V.  Pollock,  242,  401,  459. 

V.  State  Bank,  227. 

V.  White,  1114. 

V.  Williams,  768. 

V.  Wood,  50. 
Price's  Ex'rs.  v.  Lawton,  212,  213. 
Priddy  v.  Rose,  418. 

V.  Miners'  &  Merchants'  Bank, 
598. 
Priest  V.  Gumprecht,  467. 

V.  Tarlton,    1141. 

V.  Wheelock,  392. 
Prieto  V.  Duncan,  234. 
Primrose  v.  Wright,  661. 
Princeton    Loan    &    Trust    Co.    v. 

Munson,  62,  63. 
Pringle   v.   James,   808. 
Prior  V.  Wood,  94. 
Pritchard  v.  Elton,  161,  1036,  1159. 

V.  Fleetwood,  797,  801. 

V.  Kalamazoo  College,  1105. 
Pritchett  v.  Mitchell,  411. 
Prizer  v.  Herzig,  762. 
Proctor  V.  Baker,  179. 

V.  Cowper,  1251. 

V.  Farnam,  678. 

V.  Gilson,   490. 
Prondzinski  v.  Garbutt,  1033. 
Prout  V.  Hoge,   115,   198. 
Prouty  V.  Eaton  ,  78,  468. 

V.  Price,   473,   493. 
Provident    Life    &    Trust    Co.    v. 

Parrott,  445. 
Provident  Savings  Life  Assur.  Soc. 
V.    Georgia    Industrial    Co., 
62. 
Provost   V.   Farrell,    1021. 

V.  Roedeger,  640,  642. 
Pruden  v.  Rutler,  619,  640. 

V.  Williams,  252. 
Prussing  v.  Lancaster,  792. 


OF    CASES. 
are  to  Sections. 

Pryor  v.  Hollinger,  1146. 

V.  Wood,  91,  94,  416,  419. 
Puckett  V.  Read,  280. 
Pugh  V.  Holt,  101,  203. 

V.  Sinking  Fund  Comrs.,  683. 
Pullan  V.  Cincinnati  &  C.  A.  L.  R. 
Co.,  762,  763. 

V.  Cincinnati  &  C.  R.  Co.,  793, 
801. 
Pullen  V.  Chase,  52. 

V.  Heron  Mining  Co.,  198. 
Punderson  v.  Brown,  1116. 
Purdy  V.   Doyle,  874. 

V.  Phillips,  53. 
Purnell  v.  Vaughan,  945. 
Purser  v.  Cady,  713. 
Pursley  v.   Forth,  556. 
Purvis  v.  Brown,   1121. 
Pusey  v.  New  Jersey  &  W.  L.  R. 

Co.,  49. 
Putnam  v.   Bicknell,    134. 

v.  Clark,  417. 

v.  Putnam,   146,   1233. 

V.  Ritchie,    1189. 

v.  Sullivan,  400. 

V.  Henderson,  Hull  &  Co.,  809. 
Putnam     Co.     Chem.     Works     v. 

Jochen,  253. 
Pym  V.  Bowerman,  1098. 
Pyman  v.  Burt,  1023. 


Quackenbush  v.  Leonard,  512. 

v.  Mapes,  50,  78. 

V.  O'Hare,  843,  850. 

V.  Wheaton.  417. 
Quarles  v.  Knight,  977. 
Quarrell  v.    Beckford,  762,  813. 
Quaw  V.  Lameraux,  578,  637. 
Quesnel   v.   Woodlief,  434. 
Quiggle  V.  Trumbo.  765,  784. 
Quigley  v.  Beam's  Adm'r.,  535,  573. 
Quinby  v.  Manhattan  C.  &  P.  Co., 

491. 
Quincy  v.  Cheeseman.  760,  762.  784, 

793,  801,  802. 
Quinebaug  Bank  v.   French,   115. 


TABLE    OF 
References  are 
Quinn   v.    Brittain,    812,    813,    1087, 
1189,   1215. 
V.  Gunn,  765,  820. 
Quinn's  Appeal,  882. 
Quirk  V.  Liebert,  320,  944. 
V.  Thomas,  457. 


R. 


Rabb  V.  Texas  L.  &  Invst.  Co.,  743. 

Rabinovvitz  v.  Power,  801. 

Race  V.  Gilbert,  979. 

Racouillat  v.  San  Sevain,  248. 

Radford  v.  Folsom,  827,  828. 

Rafiferty  v.  King,  173,   1120. 

Raguet  V.  Roll,  406. 

Rainey  v.  McQueen,  1098.  1251. 

Ramsbottom  v.  Wallis,  1105. 

Ramser  v.  Johnson,  545. 

Ramsey  v.   Gould,   528. 

Ramsey's  Appeal,  601. 

Rand  v.  Rand,  1141. 

Randal  v.  Lower,  455. 

Randall  v.  Bradley,  1032,  1058,  1247. 

V.  Duff,  212,  1074,  1107. 

V.  Raab,  85. 

V.  Sweet,  395. 

V.  Snyder,  367. 

V.  Reynolds,  421. 
Randall  Co.  v.  Glendenning,  416. 
Randell  v.  Von  Ellert,  709. 
Randle  v.   Boyd,  488. 
Randolph  v.   Middleton,  60. 

V.  Widow,    etc.,    of    Chapman, 
165. 
Rands  v.  Kendall,  155,  879. 
Rangeley  v.    Spring,  456. 
Raht  V.  Attrill,  835. 
Rankin  v.  Major.  101.  203. 

V.  Maxwell,  1256. 

V.  Mortimere,    1036. 

V.  Pine,  779. 
Ranney  v.  McMulIen,  250,  743,  744. 

V.  Peyser,  250,  809,  818,  828. 
Ransom  v.  Hays,  411. 

V.  Sutherland,  756. 
Rapelie  v.  Emory,  53. 


CASES.  1835 

to  Sections. 

Rapelye  v.  Anderson,  742. 

V.  Prince,   1185. 
Rapier  v.  Gulf  City  Paper  Co.,  812, 

1121,  1221. 
Rapp  V.  Stoner,  239.  242. 

V.  Thie,  357. 
Rardin  v.  Baldwin,  717. 

V.  Walpole,   113. 
Rasmussen  v.  Levin,  58. 
Rathbone   v.    Clark,   493.   508,   578, 
584,  592,  593,  921,  927,  929. 

V.  Hooney,    166,    170,   212,   484, 
487,  682,  683. 

V.  Lyman,  120. 
Rathbun  v.  Ingersoll,  510. 
Rathey  v.  The   New  York  Rubber 

Co.,    1021. 
Raun  V.  Reynolds,  601,  652. 
Raw  V.  Pote,  69,  1061,  1246. 
Rawald  v.  Russel,  1120. 
Rawiszer  v.  Hamilton,  729. 
Rawson  v.  Copeland,  1145. 

V.  Lampman,  169. 

V.  Penn.  R.  Co.,  267. 
Ray  V.  Adams,  331,  667,  869. 

V.  Atlanta  Banking  Co.,  19. 

V.  Ferrell,  710. 

V.  Henderson,   719. 

V.  Home    &    Foreign    Invst.    & 
Agency  Co.,  316. 

V.  Oliver,  595. 

V.  Scripture,    17. 

V.  Trice,  725. 
Raymond  v.  Hogan,  419. 

V.  Holborn,  211. 
Rayner  v.  Oastler,  1256. 
Raynor  v.  Raynor,  924. 

V.  Selmes,    137,    146,    172,    651, 
668,  1139,  1191. 
Re  Barnard's  Banking  Co.,   1114. 
Re  Champion,  852,  887. 
Re  Ferguson's  Estate,  856. 
Re  Marsh,  670. 
Re  Rochester.   684. 
Re  Thompson,  831. 
Re  Willard,  1102. 
Rea  V.  Wilson,  403. 


1836  TABLE    OF 

References  are 
Read  v.  Cambridge,  294. 

V.  Edwards,  80. 

V.  Knell,  412. 
Reading  v.  Weston,  423,  1029. 
Ready  v.  Huebner,  411. 

V.  Pinkham,  396. 
Real  Estate  Associates  v.  San  Fran- 
cisco Superior  Court,  772. 
Real  Estate  Trust  Co.  v.  Balch,  459. 

V.  Keech,  440,  446. 
Ream  v.  Jack,  244. 
Reap  V.  Battle,  620. 
Receivers   Globe  Insurance  Co.,  In 

re,  789. 
Records  v.  Melson,  79. 
Rector  v.  Mack,  682,  683,  712. 
Redden  v.   Miller,  943. 
Reddick  v.  Gressman,  752. 
Redman  v.  Cass,  649. 

V.  Deputy,  54,  70. 

V.  Purrington,  326,  327. 
Redmond  v.  Burroughs,  1197. 
Redrow    v.    Sparks,   423,   428,   495, 

500. 
Reed  v.  Bond,  412. 

V.  Bradley,  176. 

V.  Catlin,  1006,  1009. 

V.  Eastman,  459. 

V.  Gannon,  369. 

V.  Home  Savings  Bank,  54,  70. 

V.  Jones,  71. 

V.  Latson,  412,  421,  427,  449. 

V.  Marble,  137,  146,  147,  148. 

V.  Merriam,   1185. 

V.  Paul,  242. 
Reedy  v.  Millizen,  545. 
Reeks    v.    Postlethwaite,    83,    1249, 

1256. 
Reel  v.  Wilson,  1071. 
Rees  v.  Overbaugh,  399. 
Reeves  v.  Brown,  29. 

v.  Cooper,   1177. 

V.  Kimball,  418. 

V.  Scully,  416. 

V.  Wilcox,  741,  743. 
Reg.  V.  Inhabitants  of  the  Parish  of 

Lee.  490. 
Regan  v.  Williams,  598. 


CASES. 
to  Sections. 

Regans    Succession.  983. 
Reggio  v.  McCan,  831. 
Reid  V.  Gardner,  140. 

V.  Latson,    1050. 

V.  McMillan,  11. 

V.  McNaughton,    81. 

V.  Rensselear  Glass  Factory,  S3. 

V.  Town  of  Long  Lake,  683. 
Reiley  v.  Carter,  717. 
Reilly  v.  Haseltine,  453. 

V.  Mayer,  602. 

V.  Phillips,  1135. 
Reimer  v.  Stuber,  1251. 
Reineman  v.  Robb.  419. 
Remann  v.  Buckmaster,  478. 
Remington  v.  Walker,  389. 

V.  Willard,  1006. 
Remington  Paper  Co.  v.  O'Dougher- 

ty,  105. 
Remsen  v.  Hay,  1044,  1047.  1048. 
Renard  v.  Brown,  180,  1105.  1183. 
Renaud  v.  Conselyea,  120,  123,  124, 

412. 
Renshaw  v.  Stafford,  482. 

V.  Taylor,    161. 
Rensselaer   Glass   Factory  v.   Reid, 

53. 
Renwick  v.  Macomb,  385,  833. 
Requa  V.  Rea,  622,  624,  627,  640,  647, 

651,  652.  664.  666. 
Reusch  V.  Keenan,  855,  856. 
Rexford  v.  Rexford,  439. 
Reynal,  Ex  parte,  490. 
Reynard  v.  Brown,  1105. 
Reynolds  v.  Baker,  1251. 

V.  Blake,  668. 

V.  Dietz,  741,  743. 

V.  Fagan,  540,  555. 

V.  Green,  75. 

V.  Greening,  1247. 

V.  Hennessy,  917. 

V.  Price,  468. 

V.  Robinson,  267. 

V.  Shirk.  67. 

V.  Smith,  468. 

V.  Tooker,   1209. 

V.  Ward,  467. 

V.  Wilson,  537,  604. 


TABLE    OF    CASES. 
References  are  to  Sections. 


1837 


Reynoldson  v.  Perkins,  171. 
Rhoades  v.  Reed,  53. 
Rhodes  v.  Dutcher,  561. 

V.  Evans,   138,  234. 

V.  Mostyn,  816. 
Ricard  v.  Sanderson,  242,  244,  248, 

744,  746,  750. 
Rice  V.  Bunce,  458. 

V.  Cribb,  412,   1003,   1005. 

V.  Dillingham,  106. 

V.  Dewey,  416,  714,  716. 

V.  Goddard,  448. 

V.  Hall,  341. 

V.  Kelso,  184,  455. 

V.  Welling,  409. 
Rich  V.  Colquitt,  801. 

V.  Eichelberger,   584. 

V.  Lord,   140. 

V.  Morisey,  320,  942,  1061,  1192. 
Richards  v.  Chesapeake  &  O.  R.  Co., 
759. 

V.  Finnegan,  554. 

V.  Holmes,  43,  50,  54,  56,  58,  606. 

V.  Knight,  718. 

V.  Kountze,  115. 

V.  Richards,  979. 

V.  Smith,  681. 

V.  Thompson,   161. 

V.  Vanderpoel,  439. 

V.  Waring,  415. 

V.  Worthley,  409,  410. 
Richardson  v.  Borden,  490,  716. 

V.  Boright,  395. 

V.  Cambridge,  468. 

V.  Copeland,  492. 

V.  Duncan,  439. 

V.  Hadsall,  175. 

V.  Hahn,  537. 

V.  Hastings,  88. 

V.  Horton,  523. 

V.  Jones,  666. 

V.  Lowe,  423. 

V.  McKim.  102. 

V.  Searles,  665. 

V.  Skolfield,  155. 

V.  Stephens,  686,  691. 

V.  Tolman,  497. 

V.  Woodruff,  418. 


Richey  v.  Guild,  793. 
Richmond  v.  Aiken,  74,  80. 

V.  Bennett,  683. 

V.  Gray,  676. 
Richter  v.  Jerome,  89. 
Rickards  v.  Hutchinson,   138,   1006. 
Ricketts     V.     Chicago      Permanent 
Building  &  Loan  Assc,  731. 
Ricord  v.  Jones,  427. 
Riddick  v.  Walsh,  160. 
Riddle  v.  Hall,  406. 
Rider,  In  re,  640. 

V.  Bagley,  762,  790,  806,  826. 

V.  Vrooman,  788. 
Rielly  V.  Phillips,  1135. 
Rigby  V.  McNamara,  678. 
Riggan  V.  Sledge,  420. 
Rigge  V.  Bowater,  791. 
Riggs  V.  Boucicault,  746. 

V.  Owen,  555. 

V.  Purssell.  418,  665,  669,  670, 
677. 
Righter  v.  Stall,  409,  473. 
Rigney  v.  DeGraw,  1250. 

V.  Lovejoy,  115. 

V.  Small,  649. 
Riley  V.  McCord,  392,  912,  1234. 

V.  Rice,  459. 
Riley's  Adm'r  v.  McCord's  Adm'r, 

120,  165,  1234. 
Rilling  V.  Thompson,  1004. 
Ring  V.  New  Auditorium  Pier  Co., 

551. 
Ringo  V.  Brooks,  81. 

V.  Wing,  286. 
Ripley  V.  Babcock,  397. 
Rippetoe  V.  Dwyer,  584. 
Risk  V.  Hofifman.  112,  ZZl . 
Ritch  V.  Eichelberger,  182,  584,  602, 

1209. 
Ritchie  V.  Judd,  543,  607,  628,  630, 

632,  645,  700. 
Ritger  V.  Parker,  SO,  579,  683. 
Ritter  v.  Phillips,  245,  459. 
Ritzer  V.  Burns,  75. 
Roach  V.  Glos,  719. 
Roake  v.  Sullivan,  495,  500. 
Roarty  v.  Mitchell.  318. 


1838 


1133, 


Bldg. 


Roath  V.   Smith,   122. 
Robbins  v.  Beers,  700. 

V.  Brown,  1134. 

V.  Eaton,  396. 

V.  Farley,  81. 

V.  Rice,  10. 

V.  Swain,  327. 

V.  Wells,  126. 
Roberst  v.  Littlefield,  1247. 
Robert  v.  Garnie,  473. 

V.  Kidansky,  253,  736. 
Roberts  v.  Bozon,  913. 

V.  Cocke,  53. 

V.  Fitzallen,  748. 

V.  Fleming,     649,     1062, 
1181,  1189,  1205. 

V.  Hinson,  862. 

V.  Jackson,  1050. 

V.  Littlefield,  75. 

V.  Loyola        Perpetual 
Asso.,  363,  912. 

V.  McNeal,  476. 

V.  Parker,  793. 

V.  Roberts,  639. 

V.  Stigleman,  97. 

V.  Welch,  74. 

V.  Wiggin,  395,  396. 

V.  Wood,   213,   484. 
Robertson  v.  American  Homestead 
Asso.,  515. 

V.  Armstrong.  788. 

V.  Brooks,   850. 

V.  Campbell,   75,  409. 

V.  Cauble,  253. 

V.  Haun,  533. 

V.  Lain,  672. 

V.  Parrish,  43. 

V.  Say  re,  682. 

V.  Van  Cleave,  1116. 

V.  Wheeler,   1050. 
Robeson  v.  Robeson,  412. 
Robinson   v.    Alabama   &    G.    Mfg. 
Co.,  128. 

V.  Brennan,  559. 

V.  Brower,   120. 

V.  Campbell,  28. 

V.  Cropsey,  982. 


TABLE    OF    CASES. 
References  are  to  Sections. 

Robinson  v.  Exrs.  of  Ward,  35. 

V.  Fife,  1256. 

V.  Glass,  400,  421. 

V.  Hadley,  768,  801,  807. 

V.  Iron  R.  Co.,   127,  620. 

V.  Leavitt,  1185. 

V.  Meigs,  622. 

V.  Nash,  777. 

V.  Preswick,  302,  714. 

V.  Robinson,   163. 

V.  Russell,  302. 

V.  Ryan,  109,  137,  146,  147,'517, 
560.  753,  927,  951,  1020, 
1185,  1197. 

V.  Sampson,  476. 

V.  Thornton,  683,  690. 

V.  Waddell,  855. 

V.  Wilcox,  327. 

V.  Williams,   118,  331. 

V.  Willoughby,   1029. 

V.  Wilson,  500. 
Robinson,  J.   M.,   Norton  &  Co.  v. 

Randall,  436. 
Roblin  V.  Long,  971. 
Robson  V.  Beasley,  54. 
Rochat  V.  Emmett,  359. 
Roche  V.  Farnsworth,  146. 

V.  Knight,  212,  484. 

V.  Moffitt,  335. 

V.  Ward,  262. 
Rochester,  Re,  684. 
Rochester  v.  Buford,  81. 
Rochester  Loan  &  Banking  Co.  v. 

Morse,   563. 
Rochester  Savings  Bank  v.  Averell, 
176. 

v.  Whitmore,  417,  443,  850. 
Rochford  V.  Battersby,  138,  172. 
Rockwell  V.  Bradley,  177. 

V.  Hobby.  331. 

V.  Jones,  161,  165. 

V.  Servant,   74,    392,   713,    1250. 
Roddam  v.  Morley,  81,  474. 
Roddy  V.  Elam,  144. 
Rodger  v.  Bowie,  609. 
Rodgers  v.  Bonner,  375. 

V.  Jones,  67,   146. 


TABLE 
References 
Rodman  v.  Hedden,  67. 

V.  Quick,  704,  1192,  1207. 

V.  Rodman,  234. 
Rodriguez    v.    Haynes,    399,    1172, 

1177. 
Roe  V.  Fleming,  467. 
Rogan  V.  Walker,  1031,  1047. 
Rogers  v.  Benton,  276,  678. 

V.  Bonner,  190. 

V.  Brown,  967. 

V.  Crow,  491. 

V.  Eagle  Fire  Ins.  Co.,   1145. 

V.  Gilinger,  490. 

V.  Herron,  242,  1077,  1085,  1105. 

V.  Holly,  654. 

V.  Holyoke,   109,   150,    151,   179. 

V.  Humphreys,  804. 

V.  Hurd,  395. 

V.  Ivers,  835,  901. 

V.  Judd,  7Z. 

V.  Meyer,   1121. 

V.  Meyers,  1058,   1059,   1116. 

V.  Moore,  73. 

V.  S.    Pine   Lumb.   Co.,   793. 

V.  Rogers.  609,  701. 

V.  Ward,  233. 

V.  Watson,  55. 

V.  Weil,  232. 
Rohrback  v.  Germania  Ins.  Co.,  620. 
Rohrhof  v.  Schmidt,  1006. 
Roll  V.  Raguet,  406. 

V.  Smalley,  211. 
Rollins  V.  Barnes.  996. 

V.  Forbes,  220,  355,  755. 

V.  Henry,  799. 
Rolls  V.  Yate,  98. 
Rome  &  D.  R.  Co.  v.  Sibert,  538. 
Roney  v.  Bell,  146,  180. 
Rood  V.  Winslow,  402,  993. 
Roof  V.  Stafford,  395. 
Rooney  v.  Crary,  1214. 
Roosevelt  v.  Ellithorp,  66,  117,  181 
2,2,Z,  843,  851,  991. 

V.  Fulton,  423. 

V.  Gardinier,  369. 
Roosevelt  Hospital  v.  Dowley,  196 
Root  V.  Collins.  584,  1209. 

V.  King,  624. 


OF    CASES.  1839 

are  to  Sections. 

Root  V.  Wheeler,  182,  843,  862,  902, 
921,  925,  950. 

V.  Wright,    138,    139,   248,    459, 
461. 
Rosa  V.  Jenkins,  987,  1002. 
Roscarrick  v.  Barton,  170. 
Rosche  v.  Kosmowski,  43,  64,  466. 
Roscoe  v.  Hale,  81. 
Rose  V.  Birkholm,  636. 

v.  Chandler,  332. 

V.  Kimball,  94. 

V.  Meyer,  345. 

V.  Page,  912. 

V.  Post,  946,  947. 

V.  Swann,  146. 

V.  Walk,  14. 
Rosebaum  v.  Gunter,  463. 

V.  Kershaw,  72i7. 
Rosenthal  v.  Friedman,  381, 
Rosevelt  v.  Bank  of   Niagara,  473, 
493. 

V.  Carpenter,  221. 
Ross    V.    Boardman,    156,   963,   966, 
969,  1134,  1205. 

V.  Darby,  72. 

V.  Jones,  81. 

V.  Haines,  599. 

V.  Kennison,  242,  246. 

V.  Lafayette  &  I.   R.   Co.,  344. 

V.  Mitchell,  80. 

V.  Norvell,  1029,  1247,  1252. 

V.  Terry,  199. 

V.  Utter,  101. 

v.  Williams,  787. 
Rosseel  v.  Jarvis,  62. 
Rossiter  v.  Cossit,  1211. 

V.  Merriman,   392. 
Roswell  V.  Williams,  403. 
Rothery  v.  New  York  Rubber  Com- 
pany, 1021. 
Rothschild  v.  Rio  Grande  W.  R.  Co., 

11. 
Rotschild  V.  Bay  City  Lumber  Co., 

1050,  1102. 
Roup  V.  Bradner,  839. 
Rourk  V.  Murphy,  233. 
Rourke  v.  Mealy.  406. 
Routh  V.  Smith,  120. 


1840  TABLE    OF 

References  are 

Routt  V.  Milner,  628,  640. 
Rowan  v.  Mercer,  179. 

V.  Sharp's  Rifle  Manufacturing 
Co.,  442. 
Rowe  V.  Griffiths,  56. 

V.  Smith,  267. 

V.  Table  Mountain  Water  Co., 
755. 

V.  Wood,  762,  812,  813,  815. 
Rowell  V.  Jewett,  1102,  1234. 
Rowland  v.  Leiby,  200,  225,  734. 

V.  West,   715. 
Rowley  V.  Bigelow,  425. 

V.  Brown,  573. 

V.  Feldman,  665. 

V.  Van  Benthuysen,  654. 

V.  Williams,  211. 
Royal  V.  Lessee  of  Lisle,  1226. 
Royce  v.  Latshaw,  715. 
Rubens  v.  Prindle,  54,  56. 
Ruby   V.    Missouri    Coal   &   Mining 

Co.,  7. 
Rucker  v.  Howard,  982. 
Ruckman  v.  Cutwater,  490. 
Rucks  V.  Taylor,  211. 
Rudd  V.  Turner,  640. 
Rudolph  V.  Herman,  718. 
Rue  V.  Dole,  305. 
Ruff's  Admr.  v.  Bull,  76,  1251. 
Rufus  V.  Rathburn,   1178. 
Ruggles   V.    First    Nat.    Bank,   612, 

661,  662.  683,  712,  717. 
Ruhe  V.  Law,  665. 
Rumball  v.  Ball,  49,  52,  344,  360. 
Rumsey  v.  Railroad  Company,  703. 
Ruprecht  v.  Henrici,  793,  1183. 

V.  Muhlke,  828. 
Rushmore  v.  Gracie,  742. 
Russ  V.  Stratton,  1114,  1131. 
Russell  V.  Austin,  1050,  1211. 

V.  Bosworth,  466,  476. 

V.  Bruce,  719,  823. 

V.  Conn,   576,  605. 

V.  Duflon,  838. 

V.  Ely,  814. 

V.  Grimes,  680. 

V.  Gunn,  622. 


CASES. 
to  Sections. 

Russell   V.    H.    C.    Akeley  Lumber 
Company,  692. 

V.  Kinney,  71,  459. 

V.  Kirkbride,  370. 

V.  Mullanphy,  179. 

V.  Pistor,  242,  481,  743. 

V.  Richards,  606. 

V.  Southard,    1037,    1044,    1047, 
1155,  11.58,  1214. 

V.  Waite,  416. 
Rutenbaugh  v.  Ludwick,  1029. 
Ruthrauff  v.  Kresz,  761. 
Rutland  Sav.  Bank  v.  White,  750. 
Rutledge  v.  Fishburne,   171. 
Rutter  V.  Tallis,  763,  778. 
Ruyter  v.  Reid,  136,  484. 
Ryan  v.  Dunlap,  115. 

V.  Ferguson,  683,  687. 

V.  Illinois  T.  &  Sav.  Bank,  762. 
Ryder  v.  Gower,  623. 

V.  Hulett,  573,  951. 
Ryer  v.  Morrison,  1243. 
Ryerson  v.  Boorman,  579. 

V.  Willis,  463,  464,  496,  500. 


s. 


Sachs  V.  American  Surety  Co.,  514. 
Sadler  v.  Jefferson,  313,  916,  1234. 
Sage  V.  Central  R.  Co.,  264,  547,  556. 

V.  Iowa  Cent.  R.  Co.,  976. 

V.  McLaughlin,  966,  975. 
Sage  V.  Mendelson,  792. 

V.  Riggs,    1010,    1187. 
Sager  v.  Hartshorn,  476. 

V.  Tupper,   546,   584. 
Sale  V.  Kitson,  167. 

V.  Meggett,   143. 
Sales  V.  Lusk,   762,  801. 

V.  Sheppard,  440. 
Salisbury  v.  Murphy,  538,  544. 
Salles  V.   Butler,  623,  649. 
Salmon  v.   Allen,    106,  201. 

V.  Clagett,   50,   327. 
Salomon  v.  Stoddard,  360,  1003. 
Salter  v.  Burt,  1141. 
Salutat   V.    Downes,    528. 


TABLE    OF 
References  are 
Saimnons    v.    Kearney,     Power    & 

Irrigation  Co.,  489. 
Sample  v.  Rowe,  102,  431. 
Sampson  v.  Pattison,  1. 
Samstag  v.   Conley,   1056. 
Samuel    v.    Peyton,    239,    244,    247, 

748. 
Sanborn  v.  Ladd,  51. 

V.  Osgood.  425,  426,  427. 
V.  Petter,  548. 
Sanders  v.  Ellington,  490. 

V.  Farrell,  405. 
Sanderson  v.  Edwards,  163. 
San  Diego  Realty  Co.  v.  Bergman, 
146. 
V.  McGinn,  146. 
Sandford  v.  Anderson,  541. 
V.  Sinclair,  765,  772. 
V.  Travers,  495,  500. 
Sandlin  v.  Kearney,  72. 
Sands  v.  Church,  411,  459. 

V.  Kaukauna  Water  Power  Co., 

516. 
V.  Pfeiffer,  492,  714. 
V.  Wood,  220. 
Sandusky  v.  Paris,  917. 
Sanford  v.   Bulkley,  95,  307. 
V.  Cahoon,   1069. 
V.  Haines,  1215,  1218. 
V.  Hill.  1209. 
V.  Litchenberger,  518. 
V.  Pierce,   1206. 
V.  Sanford,  672. 
V.  Van  Arshall,  587. 
San   Gabriel   Valley   Bnk.    v.   Lake 
View  Town  Co.,  43,  62,  360, 
502. 
Sanger  v.  Nightingale,  556. 
Sangor    Bros,    v,    Roberts,   535. 
Sangster  v.  Love,  101,  115. 
San  Francisco  v.  Lawton,  210,  213. 
San   Jose   Ranch   Co.   v.    San   Jose 

Land  &  Water  Co.,  418. 
San    Jose    Water    Co.    v.    Lyndon, 

1105. 
Santacruz  v.  Santacruz,  355. 
Santa  Marina  v.  Connolly,  618. 
Mortg.  Vol.  IL— 116. 


CASES.  1841 

to  Sections. 

Sarasota    Ice,    Fish    &    Power    Co. 

V.  Lyle  &  Co.,  228. 
Sardeson  v.  Menage,  1220. 
Sargent  v.   Baldwin,  89. 

V.  Cooley,  403. 

V.  Howe,  102. 
Sauer  v.  Steinbauer,  743. 
Saunders  v.  Dunn,  401. 

V.  Frost,   985,   988,    1136,    1175, 
1195,  1197,  1233. 

V.  Gray,  624. 

V.  Grey,  667,  675. 

V.  Peck,  1185. 

V.  Savage,   1192. 

V.  Townshend,    983. 
Sauthoff,  In  re,  603. 
Savage  v.   Foster,   1061,   1246. 

V.  Hall,  1126. 

V.  Relyea,  779. 

V.  Scott,  1020. 
Savannah  &  M.  R.  Co.  v.  Lancaster, 

64. 
Savery  v.  King.  427. 
Savile  v.  Savile,  666. 
Savings  Bank  v.  Freese,  99,  203. 

V.  Ladd,  80. 
Savings   Bank  of  Utica  v.   Wood, 

833,  855,  866,  868,  889. 
Savings    Bank    of    Southern    Cali- 
fornia, V.  Asbury,  2>Z7. 
Savings  Inst.  &  Osley,  833,  889. 
Savings  &  Loan  Society  v.  Burnett, 
321,  628. 

V.  Gibb,  163,  165. 

V.  Horton,  527. 

v.  Meeks,    432. 
Sawyer  v.  Adams,  398. 

v.  Bradshaw,  917. 

v.  Campbell,  318,  628. 

v.  Prickett,  416. 
Saxon  V.  Whittaker,  397. 
Sayles  v.  Smith,  607,  937.  938. 
Saylor  v.  Mockbie,  762. 
Saylors  v.  Saylors,  110. 
Sayre  v.  Peck,  71. 
Scammon  v.  Ward,  44. 
Scarry    v.    Eldridge.    149,   242,   252, 
341,  459,  743. 


1842 


TABLE    OF    CASES. 
References  are  to  Sections. 


Scattergood  v.  Keeley,  209,  989. 
Schaaf  v.  O'Brien,  11,  273,  274. 
Schaefer  v.  O'Brien,  619,  624,  664, 

1000. 
Schaeffer  v.  Chambers,  1206. 
Schaeppi  v.  Bartholomae,  713,  719. 
Schafer  v.   Reilly,  901,  937. 
Schallard  v.  Eel  River  Steam  Nav. 

Co.,  1007. 
Scheibe  v.  Kennedy,  328,  357,  753. 
Scheibel  v.  Anderson,  1089. 
Schell  V.  Elkins,  558. 

V.  Plumb,  881. 
Schenck  v.  Conover,  723,  726,  731, 
894. 

V.  Kelley,  485. 

V.  Sedam,  522. 
Schermerhorn  v.  Merrill,  558. 

V.  Prouty,  980. 
Scheuer  &  Bros.  v.  Kelly,  584. 
Schickel  v.  Hopkins,  1047. 
Schieck  v.  Donohue,  50,  61,  64,  347, 

721. 
Schieffelin  v.  Hawkins,  413. 
Schilling  v.  Darmody,  468. 
Schlarb  v.  Castaining,  161. 
Schlatt  V.  Johnson,  55. 
Schlitz  V.  Koch,  401,  417,  443. 
Schmidt  v.   Frey,  417. 

V.  Mackey,  358. 

V.  Potter,  1010. 
Schmucker  v.  Sibert,  75,  80,  81,  82, 

242,  474,  1256. 
Schnitter  v.  Law,   1037. 
Schoch  V.  Birdsall,  929. 
Schoener  v.  Lissauer,  436,  439. 
Schoenheit   v.    Nelson,    1185. 
Scholey  v.  DeMattos,  1003,  1006. 
Scholl  V.  Hopper,  1037. 
School    Trustees    v.    Love,   708. 
Schooley  v.  Romain,  50,  56,  64,  1039, 
Schoonmaker  v.  Taylor,  583. 
Schrack  v.  Shriner,  479,  578. 
Schreiber   v.   Carey,   567,   792,   812, 

822. 
Schroeppel  v.  Corning,  411. 

V.  Hopper,  121. 


Schryver   v.    Teller,   494,    584,    590, 

1209. 
Schubert  v.  Harteau,  450. 
Schuck  V.  Gerlech,  1087. 
Schufelt  V.  Schufelt,  11. 
Schufif  V.  Ransom,  397. 
Schuler  v.  Fowler,  755. 
Schulling  V.  Lintner,  640. 
Schultz   V.    Culbertson,  436. 

V.  Loomis,  540. 

V.  Mead,  736,  738. 

V.  McLean,  1087. 
Schuylkill    Navigation    Co.,    Presi- 
dent, etc.,  of,  V.  Theoburn, 
294. 
Schwickerath  v.  Cooksey,  432. 
Schwinger  v.  Hickok,  220,  224,  227, 

751. 
Sclater  v.  Cottam,  1009. 
Scofield  V.   Doscher,  217,  221,  228, 
234,  258,  273,  374,  7Z2,. 

V.  Van  Syckle,  389. 
Scott  v.  Austin,  636. 

V.  Buchanan,  395. 

V.  Childs,  2,7,  47,  583. 

V.  Conway,  267. 

V.  Ford's  Executrix,  578. 

V.  Frink,   466. 

V.  Henry,  1082,  1100. 

V.  Hughes,  27. 

V.  Ludington,  198, 

V.  McFarland,    120. 

V.  Nicoll,  120. 

V.  Otis,  257. 

V.  Somers,  209,  989. 

V.  Ware,   80. 

V.  Webster,  601. 
Scottish-American    Mortg.    Co.    v. 

Nye,  537. 
Scovil  V.  Scovil,  76. 
Scranton  v.  Stewart,  395. 
Scranton  Savings  Bank  &  Trust  Co. 

V.  Pier,  626,  627. 
Scripter  v.  Bartelson,  1087. 
Scripture  v.  Morris,  667. 
Scrivener  v.  Deitz,  489,  529. 
Scruggs  V.  Driver,  432. 


TABLE 
References 
Sea  Insurance  Co.  v.  Stebbins,  758, 
761,  762,  763,  "77^,  784,  787, 
792,  793,  801,  804,  819,  824. 
Seager  v.  Burns,  341. 
Seals  V.  Pheiflfer,  1105. 

V.  Rogers,  1220. 
Seaman  v.  Riggins,  640. 

V.  Hicks,  667,  668. 
Searle  v.  Chapman,  603. 
V.  Whipperman,  146. 
Searles  v.  Jacksonville  P.  &  M.  R. 

Co.,  804. 
Sears  v.  Allen,  476. 
V.  Burnham,  871. 
V.  Hyer,  367. 
V.  Mack,  871. 
V.  Shafer,  436. 
Seaton  v.  Fiske,  466. 
Seattle  L.  S.  &  E.  Ry.  Co.  v.  Union 

Trust  Co.,  637. 
Seattle  Trust  Co.  v.  Kerry,  346. 
Seaward   v.   Lord,   81. 
Seawell  v.  Bunch,  1251. 
Sebastian  v.  Johnson,  604. 
Sebree  v.  Thompson,  1037. 
Sebrell  v.  Couch,  415. 
Sebring    v.    Lant,    354. 
Second  American  Building  Associa- 
tion V.  Piatt,  342. 
Second  Avenue  Methodist  Episcopal 

Church,  In  re,  922. 
Second    Ward    Bank    v.    Upmann, 

1029. 
Secretary,  The,  v.  McGarrahan,  605. 
Security    Fire    Ins.    Co.    v.    Martin, 

509,  513,  522. 
Security  Mortgage  &  Trust  Co.  v. 

Gill,   718. 
Security  Trust  &  Safe  Dep.  Co.  v. 
New  Jersey  Paper  Board  &  W. 
P.  Mfg.  Co.,  56. 
Security  Trust  Co.  v.  Rost,  374. 
Sedwick  v.  Cleveland,  156,  173,  863, 
1114. 
V.  Fish,  561. 
V.  Gerding,  81. 
Seeley  v.  Manhattan  Co.,  1243. 
Seely  v.  Hills,  360,  361. 


OF    CASES.  1843 

are  to  Sections. 

Seewald  v.  Reynolds,  281. 

Segrest    v.    Segrest's    Heirs,    1235, 

1237. 
Seibert  v.  Minneapolis  &  St.  L.  R. 

Co.,  45,  127,  130,  332. 
Seitz  v.  Schrell,  998. 
Selb  v.  Montague,  1211. 
Selby   v.    Sanford,   459. 
Selchow   v.    Stymus,  481. 
Selectmen  of  Natchez  v.  Minor,  106. 
Selkirk  v.  Wood,  334. 
Selleck  v.  French,  53. 
Sellers   v.   Botsford,  459. 
Selhvood  v.  Gray,  683,  1056,  1244. 
Selph  V.   Cobb,  352. 
Semour   v.   Freeman,   92. 
Semple  v.  Bank  of  British  Colum- 
bia, 808. 

V.  Lee,   146,   388. 
Senft  V.  Vanek,  623. 
Sengeman  v.   Hoershman,  81. 
Serbeant  v.   Mettler.  386. 
Servis  v.  Dorn,  839,  843,  878. 
Sessions  v.  Peay,  533,  553,  554. 
Seton    v.    Slade,    1031,    1036,    1038, 

1042. 
Severance  v.  Griffith,  114,  342,  345. 

V.  Kimball,  439. 
Severin  v.  Cole,  294. 
Severson  v.  Moore,  392. 
Sewall  V.  Costigan,  533. 

V.  Eastern  R.  Co.,  1245. 
Seward  v.  Huntington,  150. 
Sewell  V.  Angerstein,  491. 
Seymour  v.  Bailey,  1163,  1224. 

V.  Canandaigua  &  N.  F.  R.  R. 
Co.,  331. 

V.  Davis,  1129,  1147,  1156,  1172, 
1217. 

V.  DeLancy,  667. 

V.  Marvin,  473. 

V.  VanSlyck,  473. 
Shackelford  v.  Schackelford,  784. 
Shackley  v.  Homer,   1055. 
Shadbolt  v.   Bassett,  245. 
Shaeffi'r  v.    Chambers,    1206. 

V.  Sleade,    400. 
Shaeppi  v.  Bartholomac,  808. 


1844 


Shafer    v.    Niver,    69. 
Shall  V.  Biscoe,  458. 
Shandley  v.  Levine,  381. 
Shank    v.    Grofif,    1038. 
Shannon  v.  Hay,  576,  1177. 

V.  Howard  Mut.  Assoc,  515. 

V.  Marselis,  417,  422,  495,  496, 
584,  602.  855,  1209. 

V.  Speers,  1215. 
Shapland  v.  Smith,  667. 
Sharkey  v.  Sharkey,  1029. 
Sharp  V.  Barker,  517,  1003. 

V.  Johnson,  912. 

V.  Speir,  605,  912. 

V.  Thompson,  516,  517. 
Sharpe  v.  Arnott,  54,  70. 

V.  Lees,  1145,  1220. 

V.  Mayor,  528. 

V.  Miller,    1078. 

V.  Tatnell,  707. 
Shattuck  V.  Lamb,  500. 
Shaw  V.  Abbott,   1213. 

V.  Bunny,  610,   1185. 

V.  Heisey,    109,    966,    967 
1056. 

V.  Hoadley,  138,  161. 

V.  Leavitt,  ZIT . 

V.  Little  Rock  &  Ft.  S.  R.  Co., 
95,  130. 

V.  McNish,  182,  192,  193. 

V.  Newell,  81. 

V.  Norfolk  Co.  R.  Co.,  18. 

V.  Saranac    Horse    Shoe    Nail 
Company,  855. 

V.  Smith,    917,   937,   944,    1010. 

V.  Walbridge,  1039. 

V.  Wellman,   58. 

V.  Williams,  63,   1141. 
Shea  V.  Ballard,  921. 
Sheaf e  v.  Gerry,  75,  79. 
Sheahan   v.   Wayne    Circuit  Judge, 

509. 
Shearer  v.  Field,  1166. 

V.  Mills,  392. 
Shed  V.  Garfield,  341. 
Sheehy  v.  Manderville,  S3. 
Sheek  v.  Klotz,  808. 


TABLE    OF    CASES. 
References  are  to  Sections. 

Shelby  v.  Bowden.  913. 

V.  Shelby,  73. 
Shelden  v.  Bennett,  97. 

V.  Erskine,   738. 

V.  Warner,  276.  361.  489.  524. 
Sheldon  v.  Bird,  1098. 

V.  Edwards,   30,   715. 

V.  Holmes,   748. 

V.  Hoy,  344. 

V.  McNall,  416. 

V.  Patterson,  156. 

V.  Pruessner,     628,     721,     1135, 
1139,  1144. 

V.  Purple,  1145. 

V.  Wright,  547. 
Shell   V.   Holston   Nat.   Bldg.   &   L. 

Ass'c,  438. 
Shellenbarger  v.  Biser,  212,  213. 
Shelley  v.  Cody,  1183,  1205. 
Shelton  v.  Atkins,  161. 

V.  Johnson,  367. 
Shepard  v.  Elliott,  1206. 

V.  O'Neil,  871. 

V.  Philbrick,  717. 

V.  Richardson,    1,    37,    38,    713, 
966. 

V.  Shepard.  69,  359,  361. 

V.  Whaley,  539. 
Sheperd  v.  Adams,  584,  855,  1209. 
Shephard  v.  Philbrick,  950. 
Shepherd    v.     Murdock,    767,    803, 
1256. 

V.  Pepper,  511,  710,  738. 

V.  Temple,    425. 
Sheppard  v.  Steele,  473. 
Sheridan  v.  Andrews,  381. 

V.  Nation,  1188. 

V.  Schrimpf,  683. 
Sherk  v.  Endress,  420. 
Sherman   v.    Bemis,   366. 

V.  Droubay,  29,  30. 

V.  Foster,  579. 

V.  Gassett,  409. 

V.  Goodwin,  459. 

V.  Hanno,  357. 

V.  Matthieu,  473. 

V.  McCarthy,  455,  488. 


969, 


TABLE 

References 

Sherman  v.  Willett,   570,   574,  717, 

940,  959. 
Sherrer  v.  Harris,  294,  297. 
Sherrod   v.   Vass,  610. 
Sherwood  v.  Hooker,  1215. 

V.  Reade,  559,  605,  912. 

V.  Reed,  10. 
Shew  V.   Call,  320. 
Shields  v.  Keys,  193. 

V.  Lozear,  468,  1218,  1247. 

V.  Pringle,  76. 

V.  Riopelle,  18. 

V.  Russell,  1152. 

V.  Yellman,  29. 
Shier  v.  Prentis,  543. 
Shillaber    v.    Robinson,    318,    923, 

1033. 
Shimer  v.  Hammond,  109. 
Shinn  V.  Shinn,  113,  179,  195. 
Shipman  v.  Lord,  469. 
Shipsey  v.  Bowery  National  Bank, 

473. 
Shirk  V.  Andrews,  967. 
Shirkey  v.  Hanna,  95,  100. 
Shirley  v.  Burch,  294. 
Shirts  V.  Overjohn,  400. 
Shitz  V.  Dieffenbach,  330. 
Shiveley's  Adm's  v.  Jones,  161,  668. 
Shnyder  v.  Noble,  233. 
Shoaf  V.  Joray,  335. 
Shockley  v.   Shockley,   133. 
Shold  V.  Van  Treek,  21. 
Shores  v.  Scott  River  Co.,  179. 
Short  V.  Bacon,  183. 

V.  Nooner,  362. 

V.  Raub,  156. 
Shorten  v.  Drake,  420. 
Shoots  V.  Boyd,  355. 
Shouler  v.  Bonander.  1214, 
Shotwell  V.  Lawson,  367. 

V.  Smith,  758,  760,  762,  763,  77Z, 
792,  793,  797,  801,  806,  819. 
Shovel  V.  Bogan,  434. 
Shreeves  v.  Caldwell,  395. 
Shriver  v.  Shriver,  676. 
Shroeder  v.  Bauer,  1087. 
Shropshire  v.  Lyle,  150. 
Shryock  v.  Waggoner,  872. 


OF   CASES.  1845 

are  to  Sections. 

Shuck  v.  Gerlach,  1087. 

Shuey  v.  Latta,  466,  601. 

Shufelt  v.  Shufelt,  347,  393,  411. 

Shuler   v.    Maxwell,  620. 

Shultz  V.  McLean,  1077. 

Shumate  v.  McLendon,   1087,   1116, 

1191. 
Shumway  v.  Cooper,  842. 

v.  Orchard,  738. 
Siahler,  Singner,  85. 

v.  Wilder,  81. 
Sibley  v.  Alba,  468. 

V.  Baker,   601. 
Sichel  v.  Carrillo,  80,  82,  1007,  1010. 
Sichler  v.  Look,  62. 
Sickles  v.  Canary,  77Z. 
Sickmon  v.  Wood,  139. 
Sidenberg  v.  Ely,  514,  516,  517,  753, 

798,  1020,  1185. 
Sidener  v.   Pavey,  478. 

v.  White,   1209. 
Sidney    Stevens    Implement    Co.   v. 

South  Ogden  Land  Bldg.  & 

Imp.  Co.,  132. 
Siemon  v.   Schurck,  331,  874. 
Sielbeck  v.  Grothman,  338,  482. 
Siewert  v.  Hamel,  735,  738,  754. 
Sigerson  v.   Sigerson,  640. 
Silcox  &  Co.  v.  Jones,  29. 
Silleck  V.   Heydrick,   721. 
Sillsbee  v.  Smith,  1220. 
Silsbury  v.  McCoon,  1189. 
Silver  V.   Bishop  of  Norwich,  811, 

816,  818. 
V.  Norwich,  763. 
Silver   Lake   Bank  v.   North,    1185, 

1186. 
Silverman  v.  Northwestern  Mut  L» 

Ins.  Co.,  801. 
V.  Silverman,  43,  55. 
Silvernail,  In  re,  899. 
Silvernail.   Matter,   838. 
Siman   v.   Rhodes,  294. 
Simar  v.  Canaday,  267,  668,  880. 
Simers  v.  Saltus,  177,  498.  730,  950. 
Simerson      v.      Branch      Bank      at 

Decatur,  680. 


1846  TABLE    OF 

References  are 
Simmons  v.  Fleming,  376. 

V.  North,  431. 

V.  Taylor,  385,  1027,  1140. 

V.  Wood,  792. 
Simmons'  Ex'rs  v.  Vandergift,  640. 
Simmons  Hdw.  Co.  v.  Thomas,  469. 
Simms    v.    Hampton,    1141. 

V.  Richardson,  44. 
Simon  v.  Schmidt,  1029. 
Simons    v.    Bryce,    163. 
Simonson   v.    Blake,   221,   335,   355, 
357,  527. 

V.  Lauck,   1129. 
Simpson  v.  DelHoyo,  459. 

V.  Simpson,  610. 

V.  Wabash,  951. 
Simpson's  Lessee  v.  Ammons,  85. 
Sims  V.  Cooper,  699. 

V.  Sims,  435. 

V.  Steadman,  704. 
Simson  v.  Satterlee,  104,  105,  202. 
Sinclair     v.     Gunzenhauser,     1247, 

1248. 
^         V.  Learned,  835,   1187. 
Singleton  v.  Cox,   172. 
Sinking    Fund    Coms.   v.    Northern 

Bank,    104. 
Sis  V.  Boarman,  285. 
Sisson  V.  Hibbard,  490. 
Sitaton  v.  Webb,  1007. 
Siwooganock  Guaranty  Sav.  Bnk.  v. 

Feltz,  541. 
Skaggs  V.  Kelly,  695. 

V.  Kincaid,  573. 
Skeel  V.  Spraker,  493,  584,  855,  1050, 

1209. 
Skeels  v.  Blanchard,   1029. 
Skelton  v.  Scott,  343,  452,  482. 

V.  Ward,  225,  327,  752. 
Skemmer  v.  Miller,  1036. 
Skilton  V.  Harrel,  717. 

V.  Roberts,  1185,  1204. 
Skinner  v.  Beatty,  723. 

V.  Buck,  146,  147. 

V.  Dayton,  69. 

V.  Harker,  591,  599. 

V.  Miller,  1082. 


CASES. 
to  Sections. 

Skinner  v.  Southern  Home  Bldg.  & 
L.  Ass'c,  355. 

V.  Young,  1105,  1121. 
Skinner's  Company  v.  Irish  Society, 

763,  768,  999. 
Skip  V.  Harwood,  762,  769,  787. 
Skipp  V.  Wyatt,  122. 
Skirving  v.   Neufville,  457. 
Slack  V.  Cooper,  556,  663. 
Slater  v.  Breese,  239,  359. 

V.  Taylor,   544. 
Slattery   v.    Schwannecke,   375,  683, 

701. 
Slaughter  v.  Foust,  93,  161,  326. 
Slauson  v.  Watkins,  244. 
Slee  V  Manhattan  Co.,  16,  187,  201, 
206,  349,  883,  915,  916,  949, 
989,  992,   1243,   1252. 
Sleeper  v.   Iselin,  797. 
Sleight  V.  Read,  878,  901. 
Slicer  v.  Bank  of  Pittsburg,  256. 

V.  Pittsburg,    1247,    1253. 
Sloan  V.  Central  L  R.  Co.,  868. 

V.  Graham,  72). 

V.  Holcomb,  427. 

V.  Moore,   762. 
Sloane  v.  Lucas,  652,  704. 
Sloat  V.  Bean,  583. 
Slocum  V.  Slocum,  645. 
Sloo  V.  Law,   1013. 
Slosson  V.  Duff,  901. 
Slotoecizki  v.   Smith,  917. 
Smack  v.  Duncan,  990. 
Small  V.  Wicks,  502. 
Smalley  v.  Hickok,  978,   1145. 

V.  Renken,  43,  58. 
Smart  v.  Bement,  408,  834. 

V.  Bradstock,  168. 

V.  McKay,  50. 
Smedes  v.  Houghtaling,  514. 
Smetz  V.  Kennedy,  53. 
Smith  V.  Allis,  438. 

V.  AUmon,  476. 

V.  American    Ins.    Co.,   622. 

V.  Austin,  1100. 

V.  Babcock,    424. 

V.  Bailey,   1237. 

V.  Batholomew,  119,  390. 


TABLE    OF 
References  ore 
Smith  V.  Benson,  715. 
V.  Billings,  62,  447. 
V.  Black,  640. 
V.  Brand,  967. 
V.  Buse,  1238. 
V.  Bythewood,  344. 
V.  Butcher,  784. 
V.  Carney,  72). 
V.  Cassity,    1141. 
V.  Chapman,  179. 
V.  Chichester,    127. 
V.  Clarke,  387. 
V.  Connor,   1113. 
V.  CoUey,    730. 
V.  Cross,  461,  746. 
V.  Cunningham,   665. 
V.  Davis,  211,  620. 
V.  Dawson,  81. 
V.  Day,   93. 
V.  Death,  676. 
V.  Deeson,  319,  542,  556. 
V.  Dodd,  508. 
V.  Duncan,    640. 
V.  Dyer,  120,  1234. 
V.  Effingham,    780. 
V.  Eustis,   155. 
V.  Fellows,  399. 
V.  Ford,  458. 

V.  Foxworthy,  533,  540,  547,  628. 
V.  Gage,  374. 
V.  Gardner,  155,  156. 
V.  Gillman,  280. 
V.  Graham,  459. 
V.  Green,  1031,  1105. 
V.  Heath,   456. 
V.  Heermance,  650. 
V.  Hesketh,   1135. 
V.  Hooton,   43. 
V.  Jackson,  879. 
V.  Johns,  46. 
V.  Kelly,  93,  792,  793,  797,  1066, 

1102,    1113,    1166,    1172. 
V.  Kenny,  482,  485. 
V.  Lamb.  43.  54,  64,  964. 
V.  Larrabe,  1218. 
V.  Lawrence,  120. 
V.  Lombardo,    133. 
V.  Lowther,  127,  128. 


CASES.  1847 

to  Sections. 

Smith  V.  Lusk,  610. 

V.  Manning,  161,  1233. 

V.  Mahon,  263. 

V.  Mayo,  395. 

V.  Moore,   143,   147,   183. 

V.  Myers,   614. 

V.  New    York     Central     Stage 
Co.,  782,  789. 

V.  Nelson,  668. 

V.  Newton,  453,  499,  500. 

V.  Osborn,  225,  327. 

V.  Ostermeyer,  252. 

V.  Orton,  1032. 

V.  Packard,   17. 

V.  People's  Bank,  1025. 

V.  Provin,  318. 

V.  Redmond,  213. 

V.  Richards,  424. 

V.  Roberts,   209,   210,  682,  683. 

V.  Robinson,   1178. 

V.  Sanger,   150. 

V.  Scaffer,  209. 

V.  Scandrett,  784. 

V.  Shay,  1105,  1177. 

V.  Shuler,  85. 

V.  Sinclair,   1111,   1244. 

V.  Smith,    476,    839,    874,    895, 
1188. 

V.  Sparks,  573,  578. 

V.  Stevens,    102. 

V.  The   Smith   Moquette  Loom 
Co.,  176. 

V.  Thompson,  338. 

V.  Tiffany,  126.  758,  823. 

V.  Townsend,  883. 

V.  Truslow,   241,  745,  748,  749. 

V.  Vincent,   1060. 

V.  Warringer,  509. 

V.  Webb,   125,   126. 

V.  Woodruff,  788. 
Smith   Bros.  Loan  &  Trust  Co.   v. 

Weiss,  540,  555. 
Smithson   Land   Co.  v.   Brautigam, 

704. 
Smithwick  v.  Ellison,  490. 
Snavely  v.  Pickle,  75,  76,  1251,  1256. 
Snedaker  v.  Warring,   714. 
Snedecker  v.  Thompson,  177. 


1848  TABLE    OF 

References  are 
Snell  V.  Atlantic  F.  &  M.  Ins.  Co., 
423. 

V.  Margritz,  416. 

V.  Stanlej',  227. 
Snipes  v.  Kelleher,  1247. 
Snook  V.  Zentmyer,  1120. 
Snow  V.  Pressey,  966,  978. 

V.  Russell,  364. 

V.  Warwick     Sav.     Inst.,     894, 
1015. 
Snyder  v.  Blair,  225. 

V.  Bunnell,  341,  350. 

V.  Harris,  88. 

V.  Martin,  872. 

V.  Pike,  29. 

V.  Robinson,  242. 

V.  Snyder,  155. 

V.  Stafford.  576,   584,  593,  839, 
840,  855,  858,  871,  874. 

V.  Warren,  1141. 
Solberg  v.  Wright,  883,  916. 
Soles  V.  Sheppard,  866,  1005,  1009. 
Solicitors'  Loan  &  T.  Co.  v.  Wash- 
ington &  I.  R.  Co.,  573. 
Solomon,  In  re,  895. 
Solomon  v.  Wilson,  349. 
Some  V.  Skenner,  488. 
Somers  v.  Milliken,  523. 
Somerset  Colliery  Co.  v.  John,  446. 
Somerset     County      Building     and 
Loan   Association   v.    Van- 
devere,  234. 
Somes  V.  Skinner,  132,  852. 
Sorchan  v.  Maya,  797. 
Sorrell  v.  Carpenter,  364,  367,  1114. 
Soule  V.  Albee,  149. 

V.  Hough,  263. 

V.  Ludlow,   640,   867,   923,   939, 
943. 

V.  The  Union  Bank,  409. 
Southard  v.  Dorrington,  517. 

V.  Pope,  1256. 

V.  Wilson,  17. 
Southerin  v.  Mendum,  115. 
Southern  Bank  v.  Humphreys,  533. 
Southern  Mutual  Building  &  Loan 

Asso.  V.  Andrews,  1234. 
Southey  v.  Mclntire,  944. 


CASES. 
to  Sections. 

South  Indiana  Loan  &  Sav.  Insti- 
tution V.  Roberts,  750. 
South   Omaha   Sav.   Bank  v.  Levy, 

966. 
South  Park  Comrs.  v.  Todd,  294. 
South  Side  P.  M.  Ass'n  v.   Cutler 
&  S.  Lumber  Co.,  67,  350. 
Southworth  v.   Scofield,  216. 
Sowles  V.  Minot,  476. 
Sowles'  Trustee  v.  Buck,  136. 
Spalding   v.    Bank   of    Muskingum, 
406,  409. 

v.  Murphy,    556. 
Spargur  v.  Hall,  435,  436. 
Sparhawk  v.   Buell,  80. 

V.  Wills,  1173. 
Sparling  v.  Wells,  417. 
Sparkman  v.  Gove,  247. 
Sparks  v.   Pico,  80. 

v.  State  Bank,  431,  492. 
Sparrow  v.  Kingman,  501. 
Spaulding  v.  Hallenbeck,  242. 
Speakman  v.  Oaks,  568. 
Spear  v.  Cutter,  799. 

V.  Hadden,  338,  443. 

V.  Hubbard,  456. 

V.  Ward,  233. 
Spears  v.  Hartley,  80. 
Speck  V.    Pullman  Palace  Car  Co., 

628. 
Speiglemyer  v.  Crawford,  1190. 
Spence  v.  Union  Cent.  Ins.  Co.,  274. 
Spencer  v.  Almoney,  440. 

V.  Ayrault.  409,   1050. 

V.  Harford,  17,  736,  964. 

v.  Humiston,  267. 

v.  Spencer,  243. 
Spencer,  H.  L.  Co.  v.  Koell,  566. 
Spengler  v.  Hahn,  1006,  1007. 
Sperry  v.   Dickinson,  232. 
Spesard  v.  Spesard,  58. 
Spies  V.  Acces.  Trans.  Co.,  267. 
Spiller  V.  Spiller,  140,  146. 
Splahn  V.  Gillespie,  671,  678,  721. 
Spraggon  v.  McGreer,  370,  377,  378, 

379. 
Sprague  v.  Baker,  498. 

V.  Blaner,  534. 


TABLE 
References 
Sprague  v.  Cochran,  92,  294. 
V.  Duel,  397. 
V.  Graham,  416. 
V.  Hazenwinkle,  473. 
V.  Jones,  228. 
V.  Lovett,   79. 
V.  Rockwell,  338,  966. 
V.  White,  177,  1077. 
Spring  V.  Fisk,  64. 
V.  Haines,  308. 
V.  Short.  172,  183,  413. 
V.  South  Carolina  Ins.  Co.,  985. 
Springer  v.  Cochrane,  1003. 

V.  Law,  545,  551.  660,  661. 
Springsteen  v.  Gillett.  225,  615,  734. 
Sproule  V.  Davies,  692. 

V.  Samuel,  177. 
Spurgeon  v.  Collier,  1031.  1042,  1045. 
Spurgin    V.    Adamson,     1077,    1085, 

1087,   1172.  1206 
Squier  v.  Xorris.  609. 
Squire  v.  Wright,  1118. 
St.  Andrew's  Church  v.  Tompkins, 

517. 
St.  Charles  v.  O'Mailey,  982. 
St.    John    V.    Bumpstead,    146,    147, 
912,  921,  922. 
V.  Freeman,   106.  201. 
St.  Joseph  Union  Depot  Co.  v.  Chi- 
cago, R.  I.  &  P.  R.  Co..  716. 
St.  Louis,   A.    &   T.   H.    R.    Co.   v 
Cleveland,    C.    C.    &   L    R. 
Co.,  843. 
St.   Louis   S.   W.   R.   Co.  V.    Stark, 

558. 
St.  Mark's  Insurance  Co.  v.  Harris, 

341. 
St.  Paul  Fire  &  Marine  Ins.  Co.  v. 
Dakota  Land  &  Live  Stock 
Co.,  392. 
St.  Regis  Paper  Co.  v.  Santa  Clara 

Lumb.  Co.,  381. 
Stackpole  v.  Robbins,  952. 
Stafford  v.  Adair.  172, 
v.  Blum,  857. 
V.  Harmon,  540. 
V.  Maus,  328. 


OF    CASES.  1849 

are  to  Sections. 

Stahl  V.   Charles,  620,  647. 

V.  Hammontree,  495. 

V.  Roost,  392. 
Stallings  V.  Thomas,  312,  320,  321, 

1192. 
Stamford  Bank  v.  Benedict,  473. 
Stamper  v.  Johnson,  1029. 
Stanbrough  v.  Daniels,  856,  1184. 
Stanchfield  v.  Milliken,  1063. 
Stancill  v.  Spain,  146. 
Stanclift  v.  Norton,  58,  517,  583. 
Standback  v.  Thornton,  320. 
Stander  v.  Chrismas,  1145. 
Standish  v.  Dow,  212. 

v.  Musgrove,  719. 
Stanfield  v.  Hobson,  1256. 
Stanhope  v.  Manners,  54,  56,  327. 
Stanislaus  Water  Co.  v.  Bachman, 

682,  683. 
Stanley  v.  Beatty,  93,  101,  102. 

■".  Freckleton,  922. 

V.  Mather,  122. 
Stanly  v.  Stocks.  589. 
Stannus  v.  French,  788. 
Stansfield  v.   Hobson.   127. 
Stamon  v.  Alabama  R.  Co..  791. 

V.  Kline,  137,  147,  912,  917,  921, 
927. 

v.  Thompson,  1050. 
Stapylton  v.  Scott,  667. 
Stark  V.  Bates,  31. 

V.  Brown.  109,  161,  165,  1098. 

V.  Fuller,  253. 

V.  Love,  320.  850,  942. 

V.  Mercer,  50,  579,  733,  737. 
Stark  Bros.  v.  Royce,  663. 
Starkweather  v.  Benjamin,  424,  428, 

429. 
Starr  v.  Ellis.  1050. 

V.  Haskins,  417. 
State  V.  Carroll,  605. 

V.  Daily,  394. 

V.  Hirons.  842. 

V.  Howard.  395. 

V.  Jacksonville   P.  &  M.  R.  R. 
Co.,  766,  771. 

V.  Lake.  392. 


1850 


TABLE    OF    CASES. 

References  are  to  Sections. 


State  V.  Northern  Cent.  R.  Co.,  302, 
799. 
V.  Plaisted,  395. 
V.  Way  man,  514. 
V.  Wilson,  407. 
State  Bank  v.  Brown,  556. 
V.  Hutchinson,  436. 
V.  Tweedy,  102. 
V.  Van  Horn,  344. 
V.  Wilchinsky,  665. 
State  Bank  of  Deep  R.  v.   Brown, 

637,  665. 
State  Bank  of  Illinois  v.  Wilson,  18. 
State  Bank  of  Ohio  v.  Hinton,  155, 

879. 
State    ex   rel.    Biddle    v.    Superior 
Court   of   King   County,  8, 
731. 
State  ex  rel.  Elliot  v.  Holliday,  538. 
State  ex  rel.  Hadley  v.  Clapp,  850. 
State  ex  rel.  Harris  v.  Laflin,  564. 
State  ex  rel.  Kunz  v.  Campbell,  612, 

640,  652,  657. 
State  ex  rel.  Steele  v.  N.  W.  &  Pac. 

Hypotheek  Bank,  722. 
State   ex   rel.   Twiss    v.    Carpenter, 

1180. 
State  ex  rel.  Wyandotte  Lodge,  No. 
35  I.  O.  O.  F.  V.  Evans,  7, 
659,  722. 
State  Mut.  Bldg.  &  L.  Asso.  v.  Bat- 
terson,  495. 
V.  O'Callaghan,  648. 
State  of  Maryland  v.  North  Cent. 

R.  Co.,  816. 
State  Realty  &  Mortgage  Co.  v.  Vil- 

laume,  547,  630,  640. 
State    Savings    Bank  v.    Kercheval, 

716. 
Staton  V.  Webb,  871. 
Stavers  v.  Philbrick,  404,  466. 
Stead's  Exrs.  v.  Course,  573. 
Steadman  v.  Gassett.  1172,  1247. 
Stebbins  v.  Eddy,  434. 
v.  Hall.  112,  239.  242. 
V.  Heath,   620. 
Steckman  v.  Harber,  735. 
Stedman  v.  Perkins,  871. 


Steel  v.   Bradfield,  56,  58,  64. 
Steele  v.  Cobham,  771. 
Steere  v.  Childs,  584,  599. 

V.  Steere,    1209. 
Stegeman  v.  Eraser,  393. 
Steger  v.  Allen,  476. 
Stein    V.    Indianapolis,    &c.,    Asso., 
459. 

V.  Kaun,  469,  1009. 
Steinbach  v.  Hill,  424,  428. 
Steinhardt  v.  Cunningham,   165. 
Steinle  v.   Bell,  547. 
Stelzich  V.  Weidel,  92. 
Stephen  v.  Ball,   141. 
Stephens  v.  Bichnell,  156,  967,  968. 

V.  Casbacker,  250,  747. 

V.  Clay,  318,  638. 

V.  Green  Co.  Iron  Co.,  221. 

V.  Humphreys,  651. 

V.  Illinois  Mutual  Fire  Ins.  Co., 
713. 

V.  McCormick,  1251. 

v.  Sherrod,  1029,  1038. 
Stephenson  v.  Allison,  661. 

V.  Harris,  649. 

V.  Kilpatrick,   1135,    1147,   1236. 
Sterling  Manuf.  Co.  v.  Early,  1074, 

1135,    1142. 
Stern   v.    O'Connell,    152,   2,67,   371, 

374,  376. 
Sternberger  v.  Hanna.  584,  591. 
Sternbergh  v.  Schoolcraft,  672. 
Stevens  v.  Bank  of  Central  N.  Y., 
877. 

V.  Campbell,  138,  139,  159,  220, 
227. 

V.  Cooper,    71,    479,    600,    602, 
1208. 

V.  Dedham    Inst,    for    Savings, 
349,  1247. 

V.  Dufour,  218. 

V.  Ferry,  138. 

V.  Guppy,   1245. 

V.  Hadfield,  719,  808. 

V.  Miner,  1215. 

V.  Reeves,  201. 

V.  Union  Trust  Company,  619. 

V.  Veriane,  985.  996,  997. 


Stevenson  v.  Dana,  944. 

V.  Edwards,  1120.  1182,  1183. 

V.  Fayerweather,  374. 

V.  Hano,  918,  937,  944. 

V.  Mathers,   100. 

V.  Murray,  679. 
Steward  v.  Bogart,  507. 
Stewart     v.     Allegheny     National 
Bank,  140. 

V.  Anderson,  1172. 

V.  Bardin,  288. 

V.  Brown,  553,  555. 

V.  Clark.  463. 

V.  Bought,  717. 

V.  Drake,  498. 

V.  Grace,  843,  850. 

V.  Hutchins,  331. 

V.  Hutchinson,  109,  683. 

V.  Jenkins,  233. 

V.  Johnson,   180,   1123. 

V.  Ludlow,  63. 

V.  McCadden,  58,  64. 

V.  McMahan,  1065. 

V.  Raymond  R.  Co.,  294. 

V.  Templeton.  88. 

V.  Thompson,  93. 

V.  Wheeling    &    L.    E.    R.    Co., 
11,  693. 

V.  Wilson.  711. 
Stewart's  Heirs  v.  Coalter,  482. 
Stibbins   v.   Anthony,    1141. 
Stiger  V.  Mahone,  242,  744. 
Stileman  v.  Ashdown,  796. 
Stiles  V.   Stannard,  285,  309. 
Still    V.    Buzzell,    1095,    1177, 

1243. 
Stillraan    v.    Rosenberg,    263, 
1189. 

V.  Stillman,  478. 

V.  Van  Beuren,  560,  790. 
Stillwell  V.  Adams,  50. 

V.  Hamm,  1234. 

V.  Kellogg,  499,  741. 

V.  McNeely,  1277. 
Stilwell  V.  Swarthout,  837. 
Stimpson  v.  Bishop.  477. 

V.  Pease.  172.  305. 
Stimson  v.  Arnold,  659. 


TABLE    OF    CASES.  1851 

References  are  to  Sections. 

Stinson    v.    Connecticut   Mut.   Life 

Co.,  516. 
Stirling  v.  McLane,  663. 
Stitwell  V.  Williams,  769. 
Stockman  v.  Wallis,  798,  799. 
Stockmeyer  v.  Tobin,  540,  554,  568. 
Stocks  V.  Youngs,    1220. 
Stockton  V.  Williams,  1227. 
Stockton  Saving  and  Loan  Soc,  v. 

Donnelly,  470. 
Stockwell  V.  Barnum,  944. 
Stockwell  V.   Campbell,  490,  716. 

V.  State,   350. 
Stoddard  v.  Forbes,  1055,  1191. 

V.  Hart,  330. 
Stoever  v.  Stoever,  1029. 
Stokes  V.  Solomons,  1092. 
Stone  V.  Barnds,  1038. 

V.  Billings,  466,   1006. 

V.  Elliott,  368. 

V.  Ellis,   1172. 

V.  Lane,   1174,   1192,   1195. 

V.  Locke,   115,  982. 

V.  Scripture,  125,  126. 

V.  Seymour,  473. 

V.  Sprague,  466. 

V.  Welling,  1112. 

V.  Wishart,    782. 
Stonehewer  v.  Thompson,  1087. 
Stoneman  v.  Erie  R.  R.  Co.,  267. 
Stoney  v.  American  Life  Ins.  Co., 
409,   411. 

V.  Shultz,  561,  584,  1209. 
Stoops  V.  Blackford,  92. 
Storer  v.  Bounds,  1045,  1098. 
Storm  V.   Smith,  721. 
Storrs  V.  Barker,  433,  456,  457,  458. 
Story  V.  DeArmond,  511. 

V.  Hamilton.  941,  954,  956,  959. 

V.  Kemp,  469. 
Stroud  V.  Casey,   1208. 
Stouffer  V.  Harlan,  704. 
Stough  V.  Badger  Lumber  Co.,  460, 

683.  704. 
Stoutz  V.  Rouse,  1036.  1044,  1047. 
Stover  V.  Bounds.  1042. 

V.  Herrington,  1035. 

V.  Johnnycake.  1003,  1007,  1010. 

V.  Stark,    610. 


1220, 


1185, 


1852  TABLE 

References 
Stow  V.  Bozeman,  432. 

V.  Tifft,  156,  396. 
Stowe  V.  Merrill,  547,  1145. 
Straight  v.  Harris,  210,  484. 
Strain  v.  Palmer,  794. 
Straka  v.  Lander,  196. 
Strand  v.  Griffith,  623,  661. 
Strang  v.  Allen,  179,  182,  1111,  1244. 

V.  Beach,  431. 
Stratton  v.  Davidson,  820. 

V.  Reisdorph,  209,  545,  620. 
Strause  v.  Josephthal,  110. 
Strausse  v.  Dutch,  7ZZ,  736. 
Street  v.  Beal,  147,  178,  1102,  1105, 

1113,  1177. 
Streeter  v.  Ilsley,  545. 

V.  Shultz,  609. 
Stretch  v.  Gowdey,  828. 
Strickland  v.  Clements,  468. 
Striker  v.  Kelly,  912. 
Striegel  v.  Harding,  358,  359. 
Strobe  v.  Downer,  210,  484. 
Strode  v.  Miller,  568. 
Strohauer  v.  Voltz,  239,  242. 
Strong  V.  Burdick,  1185. 

V.  Catton,  606,  627,  640. 

V.  Converse,  748. 

V.  Dollner,  614,  623,  681. 

V.  Downing,  198,  199. 

V.  Doyle,  490. 

V.  Grannis,  439. 

V.  Jackson,  418. 

V.  Smith,  627,  651. 

V.  Strong,   17,  964,  1255. 

V.  Tomlinson,  914. 

V.  Waddell,  422,  452,  501,  670. 
Strother  v.  Law,  92. 
Strout  V.  Lord,  1234. 
Struble  v.  Neighbert,  358. 
Stryker  v.  Storm,  653. 
Stuart  V.  Scott,  184. 

V.  Worden,  743. 
Stucker  v.   Stucker,   137. 
Studabaker  v.  Marquardt,  411,  461 
Stull  V.  Macalester,  574. 

v.  Masilonka,  263,  701. 
Stump  V.  Henry,  1252,  1256. 


OF    CASES, 
are  to  Sections. 

Sturch  V.  Young,  811. 
Sturgeon  v.  Board  of  Commission- 
ers, 335,  339,  394. 
V.  Mudd,  467. 
Sturges  V.  Crowninshield,  80. 
Sturm  v.  Parish,  458. 
Sturt  v.  Mellish,  72,. 
Stuyvesant   v.    Browning,  507,    530, 
560. 
V.  Hall,  152,  367,  374,  494,  584, 
590,    594,    599,    602,    1065, 
1209. 
V.  Hone,  152,  374,  594,  602. 
V.  Weil,  374. 
Styles  V.  Dickey,  1141,   1188. 
Succession  of  Aaron,  848. 
Succession  of  Forstall,  696. 
Succession  of  Lerude,  848. 
Suffern  v.  Johnson,  50,  723. 
Suhr  V.  Ellsworth,  468. 
Suiter  v.  Turner,   177. 
Sullivan  v.  Toole,  714. 
Sulphur  Mines   Co.  v.  Thompson's 

Heirs,  324. 
Summers  v.  Bromley,  213,  485. 
V.  Crofts,  944. 
V.  Roos,  1174. 
Sumner  v.  Coleman,  146. 
v.  Waugh,  417,  584. 
Sun  &  Evening  Sun  Bldg.  Mutual 
L.    &    Accumulating    Fund 
Asso.  V.  Buck,  360. 
Supervisors  of  Iowa  Co.  v.  Mineral 
Point  R.  Co.,  133,  179,  484. 
Surine  v.  Winterbotham,  132. 
Susquehanna  &  W.  V.  R.  &  Coal  Co. 

V.  Blatchford,  127. 
Sutherland   v.    Rose,   236,    1233. 

V.  Tyner,   155,    182. 
Sutlive  V.  Jones,  307,  462. 
Sutphen  v.  Fowler,  97. 
Sutterlin    v.    Connecticut    Mut.    L. 

Ins.    Co.,   1135. 
Suttles  V.  Sewell,  722,  1091. 
Sutton  V.  Jervis.  150. 
V.  Jones,  784. 
v.  Stone,  90,  170,  785. 


TABLE    OF 
References  are 
Suydam  v.  Bartle,  11,  221,  228,  273, 

^0,  391,  392,  393. 
Swaby  v.  Dickon,  788. 
Swain  v.   Seamens,   69. 
Swaine  v.  Perrine,  1211. 
Swan   V.  Wiswall,    155. 
Swannock  v.  Penelope,   1125. 
Swanson  v.    Realization   &   Deben- 

txu-e  Corp.,  1145. 
Swart  V.  Boughton,  355,  527. 

V.  Service,  7i,  79,  80. 
Swarthout  v.  Curtis,  523,  662. 
Swartsbaugh  v.  Swartzbaugh,  446. 
Swartz  V.  Leist,  93,   115. 
Swasey  v.  Little,  114. 
Swearingen  v.   Lahner,   43,  49,   62, 
583. 

V.  Williams,  324. 
Swearington  v.  Roberts,  119. 
SwedishAmerican     National     Bank 
V.    Connecticut    Mut.    Life 
Ins.   Co.,  951. 
Sweeney  v.  Kaufman,  54,  62,  1006. 
Sweet  V.  Hooper,  53. 

V.  Jacocks,  858,  871. 
Sweetzer  v.  Jones,  459,  492. 
Sweezey  v.  Willis,  839. 
Sweezy  v.  Chandler,  713. 

V.  Thayer,  839. 
Swenney  v.   Hill,  205. 
Swenson  v.  Moline  Plow  Co.,  101. 
Swett  V.  Poor,  365. 

V.  Stark,  43. 
Swift  V.   Board  of  County  Com'rs 
of  Hennepin   Co.,   1012. 

V.  Conboy,  601. 

V.  Edson,   138,   179. 

V.  Smith,  1041,  1135. 

V.  Stebbins,   127,   168,  207. 

V.  Thompson.  4*^2. 

V.  Yanaway,   688. 
Swinley  v.  Force,  476. 
Swon  V.  Steven,  466. 
Sykes  v.  Arne,  61. 

V.  Hastings,  782. 
Symms  v.  Nixon,  627. 
Synder  v.  Blair,  225. 


CASES.  1853 

to  Sections. 

Syracuse  City  Bank  v.  Tallman,  758, 
760,  762,  763,  793,  819. 

T. 

Tabele  v.  Tabele,  881,  1018. 

Taber  v.  Cincinnati  L.  &  C.  R.  Co., 

50. 
Tabor  v.  Foy,  418. 

V.  Tabor,  120. 
Taffey  v.  Atcheson,  737. 
Taft  V.  Stetson,  1082,  1113. 

V.  Stoddard,    1174,    1192,    1195, 
1216. 
Taggart  v.  Blair,  1145. 
Taggert  v.  Rogers,  1133,  1232,  1233. 

v.  San  Antonio,  etc.,  225. 
Taintor  v.  Hemingway,  244,  749. 
Talbot  V.  Dennis,  120. 

V.  Hope  Scott,  801. 
Talbott's  Exrs.  v.  Bell's  Heirs,  367. 
Talburt  v.  Berkshire,  250. 
Talcott  V.  Peterson,  719. 
Taliaferro  v.  Gay,  718. 
Tallmage   v.   Wallis,   422,  448,  495, 

496. 
Tallman  v.  Ely,  50,  683. 

V.  Farley,  869. 

V.  Truesdell,  1005. 
Talmage  v.  Pell,  412. 

v.  Wilgers,  602. 
Talman  v.  Smith,  526. 
Tanfield  v.  Irvine,  816,  817,  820. 
Tanguay  v.  Felthousen,  239. 
Tankin  v.  Baum,  78. 
Tanner  v.  Rapford,  667.  675. 
Tant  v.  Guess,  1155. 
Tappan  v.  Evans,  310,  391. 
Tarbele  v.  Tarbele.  879. 
Tarbell  v.  Durant,  600,  1083. 
Tartt  v.   Clayton,  941. 
Tasker  v.  Small.  1220. 
Tate  V.  Booe,  67. 

V.  Jordan,  152,  371. 

V.  Security  Trust  Co.,  417. 
Tator  V.  Adams,  833,  854,  889,  901. 
902. 


1854  TABLE 

References 
Tatum  V.  Ballard,  754. 
Taylor  v.  Adam,  150. 

V.  Agricultural  &  M.  Asso.,  109. 

V.  Alliance  Trust  Co.,  39. 

V.  Ashton,  424. 

V.  Baker,  369. 

V.  Baldwin,   71. 

V.  Bassett,  1179. 

V.  Carmon,  443. 

V.  Carroll,  380,  765. 

V.  Collins,   148. 

V.  Colville,  1243. 

V.  Derrick,  72)2). 

V.  Dillenberg,  1177,  1220. 

V.  Ellenberger,  534,  537,  725. 

V.  Fleet,  430. 

V.  Fowler.   155,  879. 

V.  Girard  L.  Ins.  A.  &  T.  Co. 
534,  536. 

V.  Godfrey,  476. 

V.  Hendrie,  81. 

V.  Hopkins,  604. 

V.  Kearn,  683. 

V.  Knox,  53. 

V.  Longworth,  679. 

V.  Maris,  602. 

V.  Mayer,  239,  748. 

V.  McClain,  1247. 

V.  Page,  408,  415. 

V.  Porter,  140,  1102,  1113. 

V.  Post,  451. 

V.  Preston,  745. 

V.  Reis,  540. 

V.  Root,  986. 

V.  Russell,  1246. 

V.  Short,  601. 

V.  Short's  Adm'r.,  602. 

V.  Townsend,  217. 

V.  Williams,  324. 

V.  Wing,  478. 

V.  Zepp,  458. 
Teaff  V.  Hewitt,  492,  714. 
Teal  V.  Hinchman,  392. 

V.  Walker,  808. 
Teel  V.  Winston,  44. 
Tefft  V.  Munson,  343,  452. 
Teller  v.  Willett,  44,  275. 
Temple  v.  Lawson,  982.  985. 


OF    CASES. 
are  to  Sections. 

Tenant's  Exr's  v.  Gray,  514. 
Ten  Eyck  v.  Casad,  180. 

V.  Craig,  609,  610,  1185,  1247. 
Tennant  v.  Stoney,  874. 
Tennery    v.    Nicholson,    1029,    1038. 
Terberville  v.   Gibson,    1629. 
Terpenning  v.  Agricultural  Ins.  Co., 

659. 
Terrell  v.  Allison,  725. 
Terrett  v.  Crombie,  167. 
Terry  v.  Allen  Bros.,  1082. 

V.  Fuller,  871,  873. 

V.  Furth,  618,  627,  649,  662. 

V.  McClintock,  395. 

V.  Resell,  601. 

V.  Wilson,  134. 

V.  Woods,   103. 
,      Tessier  v.  Burgeois,  831. 
Tetrault  v.  Fournier,  1248. 

V.  Labbe,   1107,   1237. 
Teucher  v.   Britt,   1141. 

V.  Hiatt,  1122,  1141. 
Teulon  v.  Curtis,  38. 
Texas  Loan  Agency  v.  Dingee,  324. 
Tharpe  v.  Tharpe,  776,  778. 
Thatcher  v.  Powell,  912. 
Thayer  v.  Campbell,  94,  102,  203. 

V.  Cramer,  82. 

V.  Felt,  1141. 

V.  Mann,  74,  80. 

V.  Marsh,  743,  744,  745. 

V.  Smith,   146. 
The  Martha,  985. 
The   Mercantile  Trust   Co.  v.   The 

Rochester  &  Ont.  Belt  R.  Co., 
207. 
Third  National  Bank,  In  re,  640. 
Tholen  v.  Duffy,  1003. 
Thomas,  In  re,  842. 
Thomas  v.  Allen,  67. 

V.  Brigstocke,  759.  795,  817. 

V.  Davies,  797,  823. 

V.  Dawkin,  776,  778,  781. 

V.  DeBaum,  731. 

V.  Desmond,  345. 

V.  Dunning,   168. 

V.  Fewster,  573,  637. 

V.  Harmon,  21. 


TABLE    OF 
References  are 
Thomas  v.  Issenhuth,  917. 

V.  Jones,   1149,   1233. 

V.  Kelsey,  473,  856,  868. 

V.  Kemish,    1050. 

V.  Kennedy,  872. 

V.  Mitchell,  459. 

V.  Moravia     Foundry     &    Ma- 
chine Co.,  584. 

V.  Simmons,  732. 

V.  Stone,  350. 

V.  Thomas,  567,  570. 

V.  White,  72. 
Thomasson  v.  Townsend,  1005. 
Thomes  v.  Cleaves,  409. 
Thompkins  v.  Wilkburger,  591. 
Thompson   v.    Alexander,   80. 

V.  Bender,  683. 

V.  Bertram,  242. 

V.  Bird,  584,  598. 

V.  Blanchard,  69,  458. 

V.  Bovi^yer,  1256. 

V.  Brocker,  535. 

V.  Browne,  574,  649. 

V.  Campbell,  722,  726. 

V.  Central  Ohio  R.  Co.,  28. 

V.  Chandler,  610. 

V.  Cheeseman,  38,  598,  743. 

V.  Clark,   367,  374. 

V.  Commissioners,  133. 

V.  Davenport,   1036. 

V.  Diffenderfer,  799, 

V.  Dimond,  678. 

V.  Ellenz,  310,  1054. 

V.  Emmert,  751. 

V.  Field,   102. 

V.  Foster,  1077,  1107. 

V.  Frew,  527. 

V.  Golding,  1147. 

V.  Hemenwav.  693. 

V.  Heywood,  566. 

V.  Hudson,  515. 

V.  Humboldt    Safe    Deposit    & 
Trust  Co..  401. 

V.  Huron  Lumber  Co.,  127,  183. 

V.  Jones,   359. 

V.  Keen.  991. 

V.  Kenyon,  966. 

V.  King,   546. 


CASES.  1855 

to  Sections. 

Thompson  v.  Lay,  395. 

V.  Lee,   1158. 

V.  Lyman,  156. 

V.  Maddux,   416. 

V.  Madison     Build,     and     Aid 
Asso.,  357. 

V.  Marshall,  3,  11,  3U. 

V.  Maxwell,  432. 

V.  Mount,  644. 

V.  Otsego       County       Com'rs., 
1176. 

V.  Paris,  1055. 

V.  Purcell,  540. 

V.  Richardson,  389. 

V.  Selby,  771. 

V.  Simpson,   136. 

V.  Smith,  76,  147. 

V.  Tappan,  966. 

V.  Van  Vechten,  383,  411,  418, 
1050. 

V.  Whitbeck,  92. 

V.  Whitman,  406. 
Thompson,  Re,  831,  879. 
Thompson's  Succession,   13. 
Thomson    and    Baskerville's    Case. 

137. 
Thomson  v.  Dean,  1111. 

V.  Smith,  121. 
Thorn  v.  Ingram,  533. 
Thornborough  v.  Baker,  120. 
Thome  v.  Newby,  228,  733. 
Thornily  v.  Prentice,  271. 
Thornton   v.    Commonwealth    L.   & 
Bldg.  Asso.,  1003. 

V.  Pigg,  155,  159,  160,  310,  392. 

V.  Wood,  476. 
Thorp  V.  Keokuk  Coal  Co.,  245,  246, 

247,  250. 
Thorpe  v.   Corwin,  76. 

V.  Kerns,  683. 

V.  Ricks,  147,  172. 
Thrasher  v.  Moran,  1010. 
Threfoot  Bros.   &  Co.  v.   Hillman, 

332. 
Threlkelds    v.    Campbell,   671. 
Throughton    v.    Binkes,    1233. 
Thurber  v.  Blanck,  28. 

V.  Carpenter.  313,  917. 


1856 


TABLE    OF 

References  are 


Thurston  v.  Marsh,  64,  275,  996. 

V.  Wolfborough   Bank,   344. 
Thynne  v.  Sare,  357. 

V.  Sari,  535. 
Tibeau  v.  Tibeau,  1029. 
Tice  V.  Annin,  112,  242. 
Tichenor  v.  Dodd,  240. 
Tichy  V.  Simecek,  540,  576. 
Tiernan  v.  Wilson,  573,  574. 
Tierney  v.  Oleson,  663. 

V.  Spiva,   162. 
Tifift  V.  Horton,  490,  715. 
Tilford  V.  James,  67,  90. 
Tilghman   v.   Fisher,  72>. 
Tillinghast  v.  Champlin,  787. 

V.  Frye,   1066. 
Tillson  V.  Benschotey,  540. 

V.  Mouhon,   1029. 
Tilton  V.  Cofield,  1114. 
Timmerman  v.   Cohn,  213,  667. 
Tingsley  v.  Rice,  380. 
Tinkcom  v.  Lewis,   1105. 
Tinkom  v.  Purdy,  606. 
Tinsley  v.  Atlantic  Mines  Co.,  178, 

196,  212. 
Tirrill  v.  Gage,   1145. 
Tisdale  v.  Mallett,  476. 
Titcomb  v.  Fonda,  J.  &  G.  R.  Co., 

144,  704. 
Title  Guarantee  &  Trust  Co.  v.  Fal- 
lon, 676. 

V.  Weiher,  242. 
Titlow  V.  Titlow,  397. 
Tittle  V.  Kennedy.  367. 
Titus  V.  Neilson,  879,  880,  1126. 
Toan   V.   Alexander,    1003. 
Tobey  v.  Wood,  395. 
Tobin  V.   Bell,  422. 

V.  Smith,  11,  56,  333. 

V.  Tobin,  468. 
Toby   V.    Oregon    Pacific   Railroad 
Company,  754. 

V.  Reed,  716. 
Todd's   .A.ppeal,  79. 
Toler  V.  East  Tennessee  V.  &  G.  R. 

Co..  38. 
Toliver  v.  Morgan,  609. 
Toll  V.  Cromwell,  ZZ. 


CASES. 

to  Sections, 

Toll  V.  Hiller,  472.  473,  731. 
Toller  V.  Carteret,  33,  36. 
Tomly   V.    Cassidy,    1105. 
Tome  V.  Merchants  &  Mechanics  B. 

&  L.  Co.,  182,  209. 
Tomlinson  v.  Ward,  17Z,  799. 
Tompkin    v.    Wilterberger,    584. 
Tompkins  v.  Drennen,  318. 

V.  Tomkins,  54,  70,  71,  466. 
Tooke  V.  Hartley,  17,  736. 
Toole  V.  McKiernan,  166,   167,  609. 

V.  Weirick,  1220. 
Tooley   v.    Gridley,    656. 

V.  Kane,  533. 
Toomes  v.  Conset,  1038. 

V.  Couset,  1046. 
Tootle  V.  Taylor,  640. 

V.  White,  211. 
Tootle,  Lemon  &  Co.  v.  Willy,  618, 

628. 
Topping  V.  Searson,  999. 
Tormey   v.    Gerhart,   225,   736,   738, 

756. 
Torrans   v.  Hicks,  660. 
Torrey   v.    Bank   of    New   Orleans, 
598,  599. 

V.  Cook,   140,  392. 
Tosetti  Brewing  Co.  v.  Goedel,  719. 
Totten  V.  Stuyvesant,  379. 
Touhy  V.  McCagg,   1009. 
Tower  v.  White,  180,  333,  385,  843, 

857. 
Towle  V.  Holt,  1185. 

V.  Rowe,  118. 
Towles  V.  Edwards,  421. 
Town  V.  Alexander,   132. 
Towner  v.  McClelland,  416,  468. 
Townsend   v.    Boyd,   452. 

V.  Carpenter,  786. 

V.  Empire  Stone  Dress  Co.,  71, 
466. 

V.  Jemison,   80. 

V.  Johnson,   619,  624. 

V.  Payne,  716. 

V.  Peterson,  1095. 

V.  Smith,  133. 

V.  Thomson.  683,  704. 
,  V.  Wilson.   719.   762. 


TABLE    OF 

References  are 
Townshend  v.  Stangroom,  1245. 
Towsley  v.  McDonald,  262. 
Trabue  v.   Ingles,  723. 
Tracey  v.   Atherton,    1251. 
Tracy  v.   Reynolds,  271. 
Traders'     Insurance     Company     v. 

Newman,  1251. 
Traer  v.  Fowler,  719. 
Trammell  v.  Salmon,  81. 
Trapier  v.  Waldo,  165. 
Trapnall   v.    Burton,  458. 
Trash  v.  White,  74,  75. 
Traver  v.   Eighth  Ave.   R.   R.   Co., 

259. 
Travis  v.  Waters,  982,  985. 
Trayser  v.  Trustees  of  Indiana  As- 

bury     University,     38,     70, 

466,  467. 
Trecothick   v.  Austin,    125,    126. 
Trenery  v.  American  Mortgage  Co., 

547,  640,  1141. 
Trenor  v.  LaCount,  328. 
Trenton    Banking    Co.    v.    Duncan, 

136.  457,  460. 
V.  Woodruff,  122,  134,  476,  812. 
Triebert  v.  Burgess,  360. 
Trilling    v.    Schumitsch,    623,    637, 

674. 
Trimier  v.  Thomson,  120,  234. 
Trimm  v.  Marsh,  85. 
Trinity  County   Bank  v.   Haas,  60, 

61,  62. 
Trip  V.  Vincent,  1147. 
Tripe  v.  Marcy,  74,  76. 
Triplett  v.  Sayre,  340,  357,  358. 
Trip  V.  Chard  Ry.  Co.,  785. 

V.  Cook,  618,  624,  626,  640,  647, 

1192. 
V.  Marcy.   1247. 
V.  Vincent.  1217. 
Trogden  v.  Safford,  882. 
Trombley   v.   Klersy,    1135. 
Troost  v.  Davis,  1189. 
Trope  V.  Kerns,  683. 
Troth  V.  Hunt,  211. 
Trotter   v.    Erwin,   79,   80. 
V.  Grant,  473. 

Mortg.  Vol.  II.— 117. 


CASES.  1857 

to  Sections. 

Trotter   v.    Hughes,   239,   242,   246, 

247,   481,   750. 
V.  White,  645,  652. 
Troughton  v.  Binkes,  168. 
Troup  V.  Haight,  440. 
Trowbridge  v.  Harleston,  601. 

V.  Sypher,  1211. 
Troy  V.   May,   609. 
Troy   City   Bank  v.   Bowman,   349. 
Trudeau  v.  Germann,  72,  78. 
True  V.  Haley,   138. 
Truesdail  v.  Ward,  69. 
Trulin  v.  Anderson,  94. 
Trull  v.  Skinner,   1044,    1047,   1048. 
Trulock  V.  Rubey,  1256. 
Trumble  v.  The  State,  451. 
Trumbo   v.  Flourney,  534. 
Truscot   V.   King,  473,    1174. 
Trustees  v.  Yates,  138. 
Trustees     for     Public     Schools     v. 

Anderson,  251,  743,  747. 
Trustees  Jefferson  College  v.  Pren- 
tiss,  103. 
Trustees    of    Dispensary    of    New 

York  V.  Merriman,  244,  746. 
Trustees    of    Jefferson    College    v. 

Dickson,  80. 
Trustees   of   Jones    Fund   v.    Roth, 

160. 
Trustees  of  Mut.  L.  Assc.  v.  Tyre, 

417. 
Trustees  of  old  Alms  House  Farm, 

V.  Smith.  474. 
Trustees  of   Schools  v.   Snell,   543. 
Trustees    of    Smith's    Charities    v. 

Connolly.  38,  46. 
Trustees     of     Union     College     v. 

Wheeler,      94,      416,      419, 

1065. 
Truxillo  V.  Delaune,  146,  617. 
Tryon  v.  Munson,  303. 

V.  Sutton,  29. 
Tucke  V.    Buchholz,   435. 
Tucker  v.  Cooney,  498. 
V.  Leeland.  147,  221. 
v.  JMoreland,  395. 
V.  Whitlierhee.  1220. 
Tuder  v.   Morris,   167. 


1858 


TABLE    OF 
References  are 


CASES. 
to  Sections, 


Tufts  V.  Little,  799. 

Tug  River  Coal  &  Salt  Co.  v.  Brigel, 

88. 
Tuller  V.  Beck,  271. 
Tullett  V.  Armstrong,  760. 
Tuolumme  Redemption  Company  v. 

Sedgwick,    1105. 
Turansky  v.  Weinberg,  917,  944. 
Turbeville  v.  Gibson,  1175. 
Turman  v.  Bell,  137,  1095. 
Turnbull   v.    Prentiss   Lumber   Co., 

792. 
Turner  v.  Bouchell,  310. 

V.  Clay,   667. 

V.  Johnson,  310,  1243. 

V.  Littlefield,  609. 

V.  Mebane,  716,   1238. 

V.  Midland  R.  Co.,  207. 
Turpie  v.  Lowe,  1140,  1145,  1247. 
Turton  v.  Benson,  418. 
Tuteur  v.    Brown,    1247. 
Tuthill   V.    Babcock,   424. 

V.  Tracy,  954,  958,  960. 
Tuttle  V.   Armstead,   743. 

V.  Blow,  766. 

V.  Brown,  425. 

V.  Dewey,  1105. 

V.  Lane,  177. 
Twig  V.  Fifield,  656. 
Twitchell  v.  McMurtrie.  416,  419. 

V.  Mears,  240. 
Twitty  V.  Logan,  773. 
Twombly  v.  Cassidy,  1035,  1177. 
Tyer  v.  Charleston  Rice  Milling  Co., 

556. 
Tylee  v.  Webb,  179. 
Tyler  v.  Herring,  317,  543. 

V.  Poppe,  793. 

V.  Simmons,  778,  779. 

V.  Young,    499. 

V.  Yreka  Water  Co.,  100,  203. 
Tyrrell  v.  Ward,  113. 
Tysen  v.  Wabash  R.  Co.,  792,  793, 

797. 
Tyson  v.  Chestnut,   1177. 

V.  Fairclongh,   824. 

V.  Rickard.  409. 

V.  Weber,  11. 


u. 


Ubsdell  V.  Root,  508. 
Udall  V.  Kenney,  878. 
Uedelhofen  v.   Mason,  59,  1003. 
Uhrich  v.  Livergood,   1006. 
Ulrich  V.  Drischell,  352. 
Underbill  v.  Atwater,  106. 
Underwood  v.  Lacapere,  982. 
Unger  v.   Leiter,   156,  880. 

V.  Smith,  242,  743. 
Union  Bank  v.  Bell,  168.  409,  411. 

V.  Emerson,  714. 
Union  Bank  of  Louisiana  v.  Staf- 
ford, 80. 
Union    Bank   of    ]\Iasillon    v.    Bell, 

411. 
Union  Central  Life  Ins.  Co.  v.  Bon- 
nell,  54,  70. 
V.  Curtis,  52,  58,  344. 
V.  Jones,  462. 
V.  Rogers,  1188. 
Union  College  v.  Wheeler,  201. 
Union  Dime  Savings  Bank  v.  Oslcy, 

854. 
Union  Dime  Savings  Institution  t. 
Andariese,  533. 
v.  Clark,   746. 
V.  Duryea,    868. 
V.  Osley,  901. 
Union  Institution  Company  v.  Van 
Rensselaer.    352,    385,    834, 
894,  992,  998,  1001. 
Union  Mutual  Life  Insurance  Co.  v. 
Kirchoff,    1058. 
V.  White,   1121,   1157. 
Union  Sav.  Bnk.  v.  Lincoln,  Normal 

University,  541,  661. 
Union  Trust  Co.  v.  Broshears,  127. 
V.  Davis,    537. 
v.  Driggs,  262. 
v.  Electric     Park     Amusement 

Co.,  705,  850,  851. 
V.  Grant,  58. 
V.  King,  540. 
V.  Olmstead,  21. 
Union  Trust  &  Savings  Co.  v.  Mar- 
shall's Adm'rs.,  60,  62. 


TABLE    OF    CASES. 
References  are  to  Sections. 

Union  Water  Company  v.  Murphv,       Valentine  v.  McCue.  547 
716. 

United  Security  Life  Insurance  and 
Trust  Co.,  of  Pennsylvania 
V.  Vandergrift's  Adminis- 
trator, 234. 


1859 


United  States  v.  Arnold,  514. 
V.  Gurney,  53. 
V.  Hatch,  399. 
V.  Rowland,  28. 
V.  Lenox,  1174. 
V.  Linn.  399. 
V.  Smith,  49. 

V.  Sturges.  417.  418,   1087. 
V.  Vestal,  640. 
United  States  Life  Insurance  Co.  v. 

Ettinger,  762. 
United     States     Mortgage     Co.     v. 

Gross,  417. 
LTnitcd    States    Trust    Co.    v.    New 
York,  W.   S.  &  B.  R.  Co.. 
828. 
V.  Roche,  88. 
V.  Stanton,  741. 
Unity  Co.  v.  Equitable  T.  Co.,  1006. 
University   of    Vermont    v.    Joslyn, 

1227. 
Updegraft  v.  Edwards,  416. 
Updike  v.  Merchants'  Elevator  Co., 

609,  1223. 
Upham  V.  Lewis.  819. 
Upton  V.  National  Bank  of  Reading. 

118,   1174,   1192. 
Urquhart  v.  Brayton.  242. 
Usina  v.  Wilder,  452. 
Utermehle  v.  McGarth,  288. 


Vail   v.   Arkell.   535. 

V.  Foster.  242,  750. 

V.  Jacobs,  640. 
Val  Blatz  Brewing  Co.  v.  Dalrymple, 

523. 
Vale  V.  Davenport.  678. 
Valentine  v.  Eelden,  942. 

V.  Haff.   174. 

V.  Havener,  179. 


v.  Teller,  722,  723,  725,  726. 

V.  \"an  Wagner,  56,  58,  328. 
Vallejo  V.  Randall,  29. 
Vallejo  Land  Assoc,  v.  Viera,  488, 
Van  V.   Barnett,  839. 
Van  Allen,  In  re,  789. 
Van  Amburgh  v.  Cramer,  501. 
Van   Benthuysen   v.    Central    N.   E. 

&  W.  R.  Co.,  101. 
Van  Bergen  v.  Demarest,  914,  939. 
Van    Bokkelen   v.   Taylor,   71. 
Van    Brunt  v.    Mismer,   227. 
Van  Buren  v.  Olmstead,  995,  1087. 
Van     Burkleo    v.    Southern     Mfg. 

Co.,  417. 
Van    Camp    v.    Weber.    563. 
Van  Cleef  v.  Britton,  355. 
Van   Denburgh   v.   New   York   City 

C.  U.  R.  Co..  482. 
Van  Deusen  v.  Sweet.  21. 
Van  Deventer  v.  Stiger.  106. 
Van  Doren  v.  Dickerson,  328. 
Van  Duyn  v.  Hepner.  79. 
Van  Duyne  v.  Shann.  1205. 

V.  Thayre,   85. 
Van  Dyke  v.  Davis,  387. 
Van  Heuson  v.  Radcliff,  413.  431. 
Van    Hook    v.    Throckmorton,    723, 

725,  726,  727. 
Van  Horn  v.  Keenan,  397. 

V.  Powers,   244. 
Van   Home  v.   Grain,  396. 

V.  Fonda,    609. 
Van  Houten  v.  McCarty.  466. 
Van    Loben    Sels    v.    Bunnell.    384, 

619.  637. 
Van  Loo  v.  Van  .A ken,  56.  300. 
Van    Marter    v.     McMillan.     1010. 

1187. 
Van  Meter  v.  Darrah.  325,  1096. 
Van  Nest  v.  Latson,  138. 
Van  Pelt  v.  McGraw,  302. 
Van    Rensselaer   v.    Bull,   668. 

v.  Emery,    759. 

V.  Kearney.    488. 

v.  Roberts.  473. 
Van    Riswick    v.    Goodhue,   .399. 


1860  TABLE    OF 

References  are 
Van    Schaack    v.    Sanders,    165. 

V.  Saunders,   922. 
Van    Sickles    v.    Town,   357. 
Van    Slyke    v.    Shelden,    137,    146, 

147,   148,  912,  917.  921. 
V.  Van  Loan,  478,  584.  595. 
Van  Valen  v.  Lapham,  507. 
Van  Vechten  v.  Paddock,  1141. 

V.  Terry,    168. 
Van  Vleck  v.  Enos,  683,  920. 
Van  Vleet  v.  Blackwood,  75. 
Van  Vlissingen  v.  Lenz,  61. 
Van  Voast  v.  Gushing,  895,  909. 
Van  Vrankin  v.  Roberts,  11. 
Van  Vronker     v.      Eastman,      156, 

1211. 
Van    Waggoner    v.    McEwen,    422, 

495,    496. 
Van  Wyck  v.  .Mliger,  302,  799. 

V.  Bradley.  783. 
Van  Zant  v.  Cobb,  519,  900. 
Vanarsdall  v.   The   State,   133,  412. 
Vance  v.  Lane's  Trustee,  127. 

V.  Monroe,  473. 
Vancouver  v.   Bliss,  982. 
Vanderbilt  v.  Schreyer,  253,  742. 
Vandercook  v.  Cohoes  Savings  In- 
stitution,  575,   593,  622. 
Vanderhaise  v.  Hughes.  1095,  1189. 
Vanderhayden   v.   Gary,   379. 
Vanderkemp    v.    Shelton,    16,    179, 

180,     209,     211,     242,     610, 

952. 
Vanderpoel   v.   Van   Allen,  492. 
Vanderveer's    Admrs.   v.    Holcomb, 

385. 
Vanderwerker   v.    People,    1141. 
Vandevender   v.    Moore,    563. 
Vanduyne   v.    Thayre,    1126. 
Vanhouten  v.  McGarty,  71. 
Vanmeter  v.    McFadden,   330. 
Vann   v.   Barnet,   792. 
Vannice  v.  Bergen,  305,  1050. 
Vanorden  v.  Johnson,  602. 
Vanover   v.   Thompson,  406. 
Vansant    v.    AUmon,    17,    97,    392, 
.    964. 


CASES. 
to  Sections. 

Vanstory   v.    Thornton,    155. 
Varian   v.   Stevens,  Z6. 
Varick   v.   Edwards,  488. 
Varum  v.  Meserve,  324,  841,   1012, 

1013. 
V.  Winslow,    718. 
Vartie     v.     Underwood,     879,     880, 

883, 
Vasser  v.  Livingston,  447. 
Vaugh    V.   Wetherell,   294. 
Vaughan    v.    Dowden,    1133. 
Vaughen    v.    Haldeman,    49L 
Vaughn  v.  Eckler,  529. 

V.  Nims,    576. 
Vause  V.   Wood,  771. 
Veach   v.    Schaup,    147,    148. 
Vechte  v.   Brownell,  945. 
Veeder  v.  Fonda,  545. 
Veerhoff  v.  Miller,  466. 
Veit  v.   Meyer,  645,  651. 
Velleman    v.    Rohrig,   897. 
Vendaver  v.   Baker,  533. 
Venner    v.    Denver    Union    Water 

Go.,  527. 
Verdin    v.    Slocum,    182,    624,    667, 

675. 
Vermilya   v.   Beatty,   125. 
Vermont  L.  &  T.  Co.  v.  Tetzlaff,  43. 
Vermont  &  C.  R.  Co.  v.  Vermont 

Central    R.    Co.,    760. 
Vernon  v.  Bethell.  1046,  1256. 
Vernum  v.   Babcock,   1047. 
Ver  Planck  v.  Godfrey.  50,  61. 
Verplank  v.   Caines,   762,   763,   784, 

792,  793,  797. 
v.  Mercantile     Ins.     Co.,     772. 

786,  788. 
Verree  v.  Verree,  155. 
Verry  v.  Robinson,   155. 
Very  v.  Russell,  310,  313,  610. 

V.  Watkins,    221,    310. 
Vickers  v.  Cowell,  98,   100,  203. 
Vickery  v.  Dickson,  409. 
Viele  V.  Judson,  623. 
Vietzen  v.  Otis,  537,  554. 
Vigut  V.  Ketcham,  637. 
Vilas   V.  Page.  690. 


TABLE    OF 

References  are 

Villa    V.     Rodriguez,     1044.     1047, 
1048,  1049,  1102,  1155,  1157, 
1166. 
Vilmar,  In  re,  511. 
Vimont  v.   Stitt,   115. 
Vincent   v.    Moore,   337,   516,    1185. 

V.  Parker,  760. 
Vingut    V.    Ketcham,    651. 
Vinton  v.  King,  382,  436. 
Vissman  v.  Bryant,   535,  683. 
Vizard  v.  Moody,  917. 
Voechting  v.  Grau,   1006. 
Vogel  V.  Brown,  584. 

V.  Leichner,  335,  454. 

V.  Nachemson,    850. 
Volk  V.   Shoemaker,  416. 
Von  Rhade  v.  Von  Rhade,  262. 
Voorhees    v.    McGinnis,    490,    491, 
492,  714,  715. 

V.  Nixon,    418. 
Voorhies  v.   Cranberry,  233. 
Voorhis    v.    Freeman,    490. 

V.  Murphy,  54,  56. 
Vosburgh  v.  Lay,  1044,  1187,  1207. 
Vose  V.  Bronson,  95. 

V.  Reed,    762. 
Voshell   V.    Hynson,   799. 
Voss  V.  Eller,  485,  1242. 
Vought  V.  Levin,  352. 
Vredenburgh  v.  Burnet,  417. 
Vreeland   v.  Jacobus,  880. 

V.  Loubat,    138,   234. 

V.  Van  Blarcom,  242,  743. 
Vroom    V.    Ditmas,    179,    180,    182, 
410,  411,  683,  943,  949,  951, 
989,  992,  995.  1191,  1243. 

V.  Van  Home,  125,  126. 
Vrooman  v.  Turner,  148,  232,  233, 
246,  247,  25^,  257,   746. 

W. 

Wabash,    St.    L.   &    W.   R.   Co.   v. 

Central  Trust   Co.,  810. 
Wa    Ching    v.    Constantine,    335. 
Wacht  V.  Erskine,  718. 
Wachter   v.   Albee,   81. 
VVacker    v.    Straub,    448. 


CASES.  1861 

to  Sections. 
Waddell  v.  Beach,  422. 

V.  Hewitt,  7iZ,  7Z7. 
Wade  V.  Coope,  1124. 

V.  Hennessy,    294. 

V.  Johnston,    492. 

V.  Lindsey,    1227. 

V.  Strever,  487. 
Wadhams  v.   Gay,  688. 
Wadleigh  v.  Janvrin,  492. 
Wadsworth  v.  Georger,  259. 

V.  Lyon,  110,  227,  239,  243,  744. 

V.  Nevin,   481. 

V.  Wendell,  331,  398. 
Wager  v.  Chew,  239. 

V.  Link,  744. 

V.  Schuyler,   881. 
Wagner  v.  Baird,  7Z, 

V.  Cohen,    533. 

V.  Hodge,   172. 
Wagnon  v.  Pease,  169. 
Wagstaff  V.    Lowerre,    1079. 
Wahl  V.  Phillips,  392. 
Wainwright  v.  Flanders,  431. 
Wait  V.   Getman,  243. 

V.  Van  Allen,  623,  649. 
Waite  V.  Malchow,  661. 
Wake  V.  Hart,  618. 
Wakefield   v.   Rotherham,    1135. 
Wakefield  Bank  v.  Truesdell,  467. 
Wakeman  v.   Banks,   177. 

V.  Price.    619,    643,    654. 

V.  Sherman,  81. 
Walbridge  v.  James,  526,  527,  979. 
Walch  V.  Cook,  409. 
Walden  v.   Bodley,    1245. 

V.  Gratz,    1251. 

V.  Skinner,    423. 

V.  Speigner,    1087,    1134. 
Waldo  V.  Rice,  1249,  1256. 

V.  Williams,    182,   576. 
Waldron  v.  First  Nat.  Bnk.,  793. 

V.  Leston,    711. 
Wales  V.   Sherwood,  242,  244,  743. 
Walke  V.  Moody,  872. 
Walker  v.  Bank  of  Mobile,  198. 

V.  Bell.    825. 

V.  Carlton,   1107. 

V.  Chessman,    1251. 


1862  TABLE    OF 

References  are 
Walker  v.  Cockey,  914. 

V.  Dement,  417. 

V.  Dickson,   149. 

V.  Goldsmith,  748. 

V.  Hallett,   579. 

V.  Hubbard,   259. 

V.  Kersten,  823. 

V.  King,   111,  1025,  1105. 

V.  McCusker,    719. 

V.  Nicrosi,  438. 

V.  Schreiber,    102,    115,    179. 

V.  Schum,  618,  680,  708. 

V.  Sherman.   490,  492,   714. 

V.  Warner,    1032,    1248. 
Walkins  v.  Holman,  235. 
Wall  V.  Arrington,  431. 

V.  Covington,   982. 

V.  Hinds,  491. 

V.  McMillan,   133. 

V.  Pulliam,   791. 
Wall  Street  Ins.  Co.  The,  v.  Loud, 

774,  798,  799. 
Wallace  v.  Cherry,  717. 

V.  Dimmick,   259. 

V.  Dunning,  119. 

V.  Feely,  542,  570. 

V.  Furber,  743. 

V.  Holmes,  165. 

V.  McConnell,  344. 
Wallach   v.    Hoexter,   439. 
Wallen  v.   Moore,  385. 
Waller    v.    Harris,    179,    862,    1215, 

1236,   1237. 
Wallwyn  v.  Coutts,  168. 
Walmsley   v.   Dougherty,   1223. 

V.  Milne,  490,  492,  714. 
Walpole  V.  Quirk,  720. 
Walsh  V.  Colby,  576,  661. 
Walsh  V.'  Powers,  395. 
Walsh  V.  Robinson,  516,  735. 

V.  Rutgers,  212. 

V.  Rutgers    Fire    Ins.    Co.,    16, 
180,  181,  652,  683. 

V.  Truesdale,   166. 

V.  VanHorn,  238. 

V.  Wilson,  156. 
Walter  v.  Brugger,  721. 

V.     Wala,   133. 


CASES. 
to  Sections. 

Waltermire  v.  Westover,  80. 
Walters  v.  Walters,  156. 
Walthol  V.  Johnson,  1256. 
Walton  V.  Cody,   18,  310. 

V.  Goodnow,  220. 

V.  Hollywood,    516,    518.    1185. 
Walworth     v.     Farmers'     Loan     & 

Trust  Co.,  575. 
Wandle  v.  Turney,   1233. 
Wanmaker  v.  Van  Buskirk,  72,  75, 

76,  79,  80. 
Wanzer  v.  Cary,  114. 
Ward    V.    Berkshire   Life   Ins.    Co., 
420,    454. 

V.  Branson,    338. 

V.  Carttar,    81. 

V.  James,  606,  983. 

V.  McNaughton,  866. 

V.  Montclair    R.    Co..    897. 

V.  Price,   118. 

V.  Seymour,    440.    1107. 

V.  Sharp,   199,  446. 

V.  Smith,  344. 

V.  Van  Bokkelen.  185,  188,  198. 

V.  W^ard,  476,  659. 
Warder  v.   Enslen,    1249. 
Wardlow   v.   Middleton,  352. 
Wardrobe  v.  Leonard,  662. 
Ware  v.  Crotty,   1214. 

V.  Curry,  80. 

V.  Hamilton,  1090. 

V.  Hamilton   Brown    Shoe   Co., 
1090. 
Ware  v.  Hewett,  7,  557. 

V.  Seasongood,    1090. 
Warehime  v.  Carroll  Co.  Building 

Assoc,  18. 
Warfield  v.  Crane,  599. 
Wark  V.  Willard,  452. 
Warren  v.  Harold,  38,  56. 
Waring  v.  Smyth,  399,  703. 

V.  Turton,  207. 

V.  Waring,   371,   379. 
Warner  v.  Beardsley,   112. 

V.  Blakeman,  418,  915.  943,  949, 
1050. 

V.  Campbell,  70. 

V.  Dewitt  Co.,  211. 


TABLE    OF 

References  arc 

Warner    v.    Gouverneur,    409,    762, 
817.  819. 

V.  Gouverneur's  Ex'rs,  77Z,  792, 
793. 
Warren  v.  Boynton,  598,  599. 

V.  Burton.  209. 

V.  Fenn,   413. 

V.  Foreman,  618,  620. 

V.  Homestead.    115. 

V.  Leland,  606. 

V.  Sennett,  584. 

V.  Slade,   1141. 

V.  Stoddart,    1003,    1006. 
Warwick   v.   Ely,   601. 

V.  Hammell,   800. 
Warwick  Iron  Co.  v.  Morton,  43. 
Warwick    Institute    for    Savings   ▼. 

Providence,   294. 
Washburn  v.   Merrills,   1029. 

V.  Wilkinson,  518. 

V.  Williams,  61,  466.  944. 
Washington  v.   Bassett,  917. 

V.  Planters'    Bank,    344. 
Washington    Ins.    Co.    v.    Fleisch- 

auer,  809.  817,  827. 
Washington    Invest,    Asso'c    Co.   v. 

Stanley,  335. 
Washington  Life  Ins.  Co.  v.  Clark, 

890. 
Washington     University     of     Mis- 
souri V.  Finch,  1251. 
Waterbury  v.  McKinnon,  406. 

V.  Tucker    &    Carter    Cordage 
Co.,  983. 
Waterman   v.   Younger,  473. 
Waters  v.  Bossel,  211. 

V.  Hubbard,   352,   976. 

V.  Randall,   913,    1036. 

V.  Taylor,  768. 
Waterson  v.  Devoe.  517. 

V.  Kirkwood,  82,   1251. 
Watkins  v.  Baird.  439. 

V.  Crouch,  49.  344. 

V.  Glenn,    1071. 

V.  Gregory,    1029. 

V.  Hackett.  327. 

V.  Jerman,  725. 

V.  Watkins.   1220. 


CASES.  1863 

to  Sections. 

Watson  V.  Birch,  623. 

V.  BIymer    Manufacturing   Co., 
559. 

V.  Church,  157,  267. 

V.  Dundee  Mortgage  and  Trust 
Investment  Co.,  683. 

V.  Grand    Rapids   &  I.  R.   Co., 
289,  609. 

V.  Hunter,  799. 

V.  Hurt,  68. 

V.  Jones.   683,   686. 

V.  McCIay,   799. 

V.  IMulford,   1247. 

V.  Rudernian,   395. 

V.  Spence,  85.  137,  146,  147,  148. 

V.  Vansickle,   584,   591. 

V.  Walker,  344. 

V.  Wilson,  367. 
Watt  V.  Alvord.   155. 

V.  Watt,    150. 
Watts  v.  Creighton,  138. 

V.  Julian,  146,  683. 

V.  Kellar,    1029,    1038. 

V.  Waddle,  971. 
Wattson  V.  Jones,  1006. 
Waugh  V.  Riley.  476. 
Waughtal  &  Sons  v.  Kane,  460. 
Way  V.  Dyer,  932. 

V.  Mullett,   1137,   1191.  1220. 

V.  Scott,  691. 
Wayman  v.  Cochrane,  115,  392. 
Waymire  v.  Shipley,  1006. 
Wayt  V.  Carwithen,  80. 
Wearse  v.  Pierce.  401. 
Weary  v.  Wittmer,  7. 
Weatherby  v.  Slack,  584,  591. 

v.  Smith,  1005;  1008. 

v.  Wood,  799. 
Weaver  v.  Lyon,  640. 

V.  Toogood,   584. 

v.  Wilson,  463. 
Webb  V.  Dickinson,  473. 

v.  Flanders,  114. 

V.  Hunt,  540. 

V.  Lewis.  310. 

V.  Maxan,   147. 

V.  Mott.  259. 

V.  Nightingale,  1215. 


1864 


TABLE    OF 
References  are 


Webb  V.  Rice,  71. 

V.  Rorge,  1044,  1155. 
Webber  v.  Blanc,  72,7. 

V.  Chapman,   1150. 

V.  Curtiss,    640. 
Weber  v.  Fowler,  367,  369,  379. 

V.  Huerstel,   70. 

V.  Zeiment,  239. 
Webster  v.  Bailey,  424,  428. 

V.  Calden,   114,  120. 
Weddle  v.  Stone,  67. 
Wedge  V.  Moore,  1126. 
Weed  V.  Beebe,  179,  209. 

V.  Calkins,  744. 

V.  Hornby,  516,  517,  753,  1185. 

V.  Paine,  998. 
Weed  Sewing  Machine  Co.  v.  Em- 
erson, 154,  160. 
Weeks  v.  Hasty,  53. 

V.  Hull,  1141. 

V.  Tomes,    150,    152,    153,    190, 
366,  371. 
Weems  v.  Brewer,  669. 

V.  Lathrop,  759,  762,  830. 
Wehrheim  v.   Smith,   182. 
Weide  v.  Gehl,   1029. 
Weihl    V.   Atlanta    Furniture    Mfg. 

Co.,  285,  309. 
Weil  V.  Martin,   158,  259. 

V.  Uzzell,  488. 
Weiler  v.  Drefus,  367. 
Weinberg  v.  Naher,  60. 
Weiner  V.  Heintz,  1. 
Weinstein  v.  Sinel,  58,  256. 
Weir  V.  Birdsall,  928. 

V.  Field,  72>2,,  738. 

V.  Mosher,  120. 

V.  Slocum,   259. 

V.  Travelers'    Ins.    Co.,   640. 
Weis  V.  Levy,  296. 

V.  Neel,  894. 
Welborn  v.  Dixon,  468. 
Welch  V.  Beers,  1180. 
V.  Boston,   294. 
V.  Buckins,   156. 
V.  Stearns,   469,    1233. 
Welche  v.  Schoenberg,  671,  793. 
Weld  V.  Sabin,  1185. 


CASES. 

to  Sections. 

Welford  v.  Beezely.   1061,   1246. 
Weiler    v.    Summers,    1192. 
Wellington  v.   Ulster   Co.   Ice   Co., 

1017. 
Wells  v.  Atkinson,  1069. 

V.  Bridgeport     Hydraulic     Co. 
352. 

V.  Frazier,  541. 

V.  Geyer,  1038. 

V.  Harter,   1256. 

V.  Lawrence,  476. 

V.  Lincoln  Co.,  674. 

V.  Morse,  1251. 

V.  Rice,  656. 

V.  Tucker,   1063. 

V.  Washington,  72. 

V.  Wells,  570,  913,  917,  919,  920, 
940. 
Wells   Fargo   &  Co.,   v.   McCarthy, 

338. 
Welp  v.  Gunther,  224.  656,  722,  753. 
V/elsh  v.  Cooley,  916,  944. 

V.  Schoen,   676. 
Wemple  v.  Yosemite  Gold   Alining 

Co.,  1105. 
Wendell  v.  New  Hampshire  Bank, 
90. 

V.  Van     Rensselaer,    456,     457, 
458. 

V.  Wendell,  991. 
Wenman  v.  Mohawk  Ins.  Co.  76,  81. 
Wenzel  v.  Schultz,  39. 
Werner  v.  Heintz,  1055. 
Wesley  v.  Tindal,  377. 
West  v.  Adams,  792,  793. 

v.  Chamberlin,   17,  308,  736i 

V.  Chasten,  762. 

V.  Davis,  627,  640. 

V.  Fraser,   783. 

V.  Miller,  138,  406,  436. 

V.  Reed,   1054. 

V.  Swan,  792,  821. 
West's  Appeal,  327. 
West  Branch  Bank  v.  Chester,  SO, 

54,  56,  579,  683. 
West    Missabe    Land   Co.    v.    Berg, 
376. 


TABLE    OF    CASES. 
References  are  to  Sections. 


1865 


Westerfield  v.  Bried,  411. 

V.  Spencer,   198. 
Western  Ins.  Co.  v.  Eagle  Fire  Ins. 

Co.,  209,  211. 
Western    Iron    Wks.    v.    Montana 

Pulp  &  P.  Co.,  683. 
Western  Land  Co.  v.  Buckley,  196. 
Western  Maryland  R.  L.  &  I.  Co.  v. 

Goodwin,    312,    313. 
Western    Reserve    Bank   v.    Potter, 

188,  198,  201,  211. 
Westervelt  v.  Voorhis,  868. 
Westfall   V.   Jones,   418,   419. 

V.  Lee,    156. 
Westgate  v.  Handlin,  607,  917,  937, 

938. 
West    Missabe    Land   Co.   v.    Berg, 

376. 
Weston   V.    Weston,   490. 
Wetherbe  v.  Fitch,  72Z,   1165. 
Wetherell  v.  Collins,   122,   195,  983, 

1234,  1243. 
Wetmore  v.  Roberts,  186,  188,  921, 

923,  925.  952,  1189. 
Wetter  v.   Schlieper,   764,  775,  776, 

778. 
Wetzler  v.  Shaumann,  640. 
Weyand  v.  Park  Terrace  Co.,  475. 
Weyant  v.   Murphy,   609. 
Weyburn    v.    Watkins,    917,    944. 
Weyh  V.   Boylan,   152. 
Whalen    v.    Board   of    Supervisors, 

510. 
Whalin  v.  White,  177,  681,  719,  758. 
Whalley  v.  Eldridge  1251. 
Wharam  v.  Broughton,  825. 
Wharf   Case,  The,   769. 
Wharf   V.   Howell,    1036. 
Wharton  v.  Moore,  716. 
Wheat  V.  Kendall,  466. 
Wheaton  v.  East,  395. 

V.  Voorhis,    409.    410. 
Wheeland   v.   Swartz,    1036. 
Wheeler  v.  Bent,  1141. 
V.  Cropsey,  473. 
V.  Dake,   556. 
v.  Dakin,  344. 
V.  Emerson,  115. 


Wheeler  v.  Foster,  Z66. 
V.  Kirtland,  868,  880. 
v.  Maitland,    29. 
v.  McBlair,    Z6,   314,   316,    640, 

642. 
V.  Menold,    1136. 
V.  Morris,  155,  156,  1126,   1134. 
V.  Scully,  266. 
V.  Sexton,   912. 
V.  Standley,    464,    500. 
V.  Van    Kuren,    181,    833,    843, 

857. 
V.  Wheedon,  872. 
V.  Willard,  1208. 
Wheeler   &  Wilson   Manufacturing 

Co.  V.  Howard,  583. 
Wheelock  v.  Lee,  271. 
Wheelwright  v.  St.  Louis  N.  O.  & 
O.  Canal  Transp.  Co.,  132. 
Whelan  v.  Whelan,  436. 
Whetstone  v.  McQueen,  1182. 
Whipfler  v.  Warren,  29. 
Whipple  V.  Barnes,  79,  80. 
v.  Blackington,  349. 
V.  Foot,  717. 
V.  Williams,   1141. 
Whisenhant  v.  Hybart,  1234. 
Whitaker    v.    Desfosse,    508. 

V.  Hall,    1192. 
Whitaker  v.   Old  Dominion  Guano 

Co.,  1012. 
Whitbeck   v.   Rowe,   542,   576,   618, 

640. 
Whitcher  v.  Webb,  54,  56. 
Whitcomb  v.   Harris,   1207. 
White  V.  Allatt,  127. 

v.  Bartlett,  179,  188.  211. 

V.  Bishop  of  Peterborough,  811, 

817. 
V.  Black.  7. 
V.  Bogart,  889,  902. 
V.  Bond,    1087. 
V.  Carpenter,  331,  365,  858,  872, 

874. 
V.  Costigan,  1105. 
V.  Coulter,    153,    156,    157,    158, 
Z77,  378,  507,  618,  624,  640, 
643. 


1866  TABLE    OF 

References  are 
White  V.  Crow,  1067. 

V.  Fisher,  113. 

V.  Griggs,  792,  808. 

V.  Hampton,  1105,  1177. 

V.  Heylman,   418. 

V.  Holman,  209,  211. 

V.  Hyatt,    357,    358. 

V.  Joy,   343,  344. 

V.  Lucas,  409. 

V.  Mackey,  823. 

V.  McClellan,  930. 

V.  Miller,    583. 

V.  Parnther,    1079. 

V.  Patten,  452. 

V.  Poillon.   837,   860,   890. 

V.  Polleys,   603. 

V.  Rittemeyer,    120,    161,    193. 

V.  Rose,    841. 

V.  Secor,    122. 

V.  Sheldon,  73. 

V.  Shirk,  899. 

V.  Smith,    1055. 

V.  Stevenson,  469. 

V.  Sutherland,  417. 

V.  Swift.   344. 

V.  Watts,    576. 

V.  Williams,    217,    440,    444. 

V.  Wilson,  431,  626. 

V.  Zust,  225,  607,  734,  735. 
White-crow   v.    White-wing,    660. 
Whitehead  v.  Brown,  431. 

V.  Hall,   1105. 

V.  Whitehead,    610. 

V.  Whitehurst,    610.    665. 

V.  Wooten,  771.  792,  819. 
Whitemire  v.  May,  324. 
Whiteside  v.  Prendergast,  784,  830. 
Whitefield  v.  Riddle,  941. 
Whitford  v.  Crooks,  263. 
Whithed  v.  St.  Anthony  &  Dakota 

Elevator  Co.,  719. 
Whiting  V.   Geary,  250. 

V.  New   Haven,  294. 

V.  White,  1256. 
Whiting   Paper   Co.  v.    Busse,  418. 
Whitlock  V.  Gosson,  571. 
Whipperman  v.  Dunn,  1105. 


CASES. 
to  Sections. 
Whitney   v.   Allen,   681. 

V.  Beklen,   779. 

V.  Buckman,  29,  335. 

v.  Dinsmore,    494. 

v.  Dutch.  395. 

V.  I-Iiggins,  179,  967,  1027,  1113, 
li?3. 

v.  Krapf,  314,  318,  701. 

V.  Leominster   Sav.    Bank,   556. 

v.  McKinney,  91,  92,    106,   138, 
185,  186,  198.  200. 

V.  Stearnes,  974. 

v.  Whiting,  498. 
Whittelsey  v.  Beall,  357,  358. 
Whittemore   v.   Gibbs,    115. 
Whittla   V.    Halliday,    193. 
Whittle  V.  Jones,  423. 
Whitworth  v.  Rhodes,  945. 

V.  Whyddon,    763,    773. 
Whorton  v.   Moore,  1189. 

V.  Webster,   804. 
Wicke  V.  Lake,  212. 
Wickenden  v.   Raysen,  211. 
Wickes  v.  Scrivne,  1127. 
Wiener  v.  Zwieb,  324. 
Wier  v.   Mosher,  478. 
Wiggin  v.  Heywood,  854,  892. 
Wiggins  v.   Richmond,   259. 
Wight  V.  Gray,  714.  716. 
Wightman  v.  Gray,  218,  72,^. 
Wikoff  V.  Davis,  584,  591,  855. 

V.  Dows,   1209. 
Wilber  v.  Miller,  1082. 
Wilbur  V.   Buchanan,  464,  500. 

V.  Warren,    744. 
Wilcox  V.  Allen,  64,   103. 

V.  Campbell,  242,  598. 

V.  Drought,  901. 

V.  Howell,  421. 

V.  Morris,    1029. 

V.  Smith,  605,  609. 
Wilcoxson  V.  Osburn,  109. 
Wilder  v.  Haughey,  963,  966. 
Wiley  v.  Angel,  618,  624. 

v.  Ewing,  180,  1105.  1111.  1123, 
1126,  1159.  1244. 

V.  Pinson,  101.  141.  165. 


37,  74,  75, 


Wilhelm  v.  Lee,  221. 

V.  Russell  1185. 
Wilkerson  v.   Daniels,  210,  220. 

V.  Eilers,  322. 
Wilkes  V.  Miller,  469. 
Wilkins  V.  French,   1082,  1126. 

V.  Lynch,  791. 

V.  McGehee,  324,  740. 

V.  Wilkins,    162,    165. 

V.  Williams,  776,  778. 

V.  Wilson,   1087. 
Wilkinson    v.    Flowers 
78,  79,  80. 

V.  Green,  212,  213. 
Willard,  Re,  1102. 

V.  Finnegan,  940,    1087, 

V.  Nason,  165. 
Willaume  v.   Gorges,   72. 
Willemin  v.  Dunn,  1096. 
Willes   V.   Yates,   423. 
Willets  V.  Van  Alst,  452,  611,  664, 
Willett  V.   Winnell,    1046. 
Willette  V.  Gifford,  82. 
Willetts  V.  Burgess.   1036,   1038. 
William  v.  Rouse,  1191. 
Williams'  Case,  963. 
Williams  v.  Armistead,  324. 

V.  Ayrault,   410. 

V.  Bayley,  436. 

V.  Beard,    146,    161. 

V.  Benedict,   765. 

V.  Birch,    411. 

V.  Bolt,  1135. 

V.  Brownlee,  207. 

V.  Chicago    Exhibit.    Co.,    714. 

V.  Cochran,   718. 

V.  Colwell.   549. 

V.  Cooper,  136,  196. 

V.  Cornell,  345. 

V.  Hoffman,   1145. 

V.  Kerr,   179. 

V.  Lumpkin,  633. 

V.  Meeker,   138,   148,  1005. 

V.  Noland.  801. 

V.  Perry.   140,  584. 

V.  Robinson,  811,  815. 

V.  Smith,    198. 

V.  Stewart.  1133. 


TABLE    OF    CASES.  1867 

References  are  to  Sections. 

Williams  v.  Storrs,  125. 

V.  Sykes,  1147. 

V.  Taylor,  541,  640,  661. 

V.  Terrell,  146. 

V.  Thompson,    1147. 

V.  Tilt,  411. 

V.  Townsend,  58,  516,  517,  610, 
753,  831,   1020,    1185. 

V.  VanGeison,  746. 

V.  Washington,  324. 

V.  Williams,    320,    420,   985. 

V.  Wilson,  761. 
Williams'  Heirs  v.  Douglass,  65. 
Williamson  v.  Berry,  533,  537,  604, 
614,    663. 

V.  Brown,  369. 

V.  Carskadden,   394. 

V.  Champlin,    11.   273,  310,  347, 
391,  392,  393. 

V.  Dale,  626,   640,   650,  655. 

V.  Dickerson.  1192. 

V.  Doe,    10,    1025. 

V.  Duffy.    233. 

V.  Field,  146,  161,  167,  168,  169, 
170. 

V.  Field's  Ex'rs.  166. 

V.  Fox,    440. 

V.  Gerlach.   809. 

V.  New  Albany  R.  Co.,  811. 

V.  Probasco,   209. 

V.  Stone,    1052,    1248. 

V.  Williams,    366. 

V.  Wilson.    769,    797. 
Williamson-Halsell,   Frazier  Co.  v. 

Ackerman,   436. 
Willing  V.  Ryerson,  1128. 
Willingham   &    Cone   v.    Huguenin, 

95.    101. 
Willink    V.    Morris    Canal    Banking 

Co.,  127,  179,  195. 
Willis  V.  Bellamy.  372.  381. 

V.  Corlies,  784.  793. 

V.  Farley,   115. 

V.  Henderson.  168. 

V.  Jelineck.  1085,  1087,  1089. 

V.  Mcintosh.  1055. 

V.  Miller.  610,   1153. 

V.  Robinson,    78. 


1868 


TABLE    OF    CASES. 
References  are  to  Sections. 


Willis  V.  Smith,  1055,  1114. 

V.  Turkey,  1150. 

V.  Twambly,  395,  396,  419. 

V.  Vallette,  114. 
Wilmer  v.  Atlanta  &  R.  A.  L.  R. 
Co.,  127,  570. 

V.  Huntington,  584. 
Wilmont  v.  Meserole,  381. 
Wilson  V.  Allen,  778,  783. 

V.  Benedict,  679. 

V.  Bird,  54. 

V.  Calder,  338. 

V.  California   Bank,   374. 

V.  Cantrell,  705. 

V.  Davis.  810. 

V.  Dohler,   146. 

V.  Drumrite,   1029,   1036. 

V.  Eigenbrodt,    103. 

V.  European   &   North  Am.   R. 
Co.,  294. 

V.  Fatout,    106. 

V.  Fielding,  874. 

V.  Giddings,    106. 

V.  Hayes,  1223,  1233. 

V.  Hayward,    101,   327. 

V.  King,  244. 

V.  Maltby,  302. 

V.  Northwestern  Mut.  Life  Ins. 
Co.,  547. 

V.  Ott,  433. 

V.  Page,  547. 

V.  Petzold,  547. 

V.  Pickering,  469. 

V.  Robertson,   1251. 

V.  Russ,  166,  822. 

V.  Scott,  155. 

V.  Spring,  92,  198. 

V.  Stillwell,    67. 

V.  Tartar,  1029. 

V.  Thorn,  553. 

V.  Troup,  913,  916,  942,  944,  949, 
1107,  1169. 

V.  Vanstone,  1105. 

V.  Wall,  917. 

V.  Wilson,  17,  783.  817,  999. 
Wilton  V.  Jones,  120,  127,  166. 
Wiltshear  v.  Cottrell,  490. 


Wimpfheimer  v.  Prudential  Ins.  Co., 

683. 
Winans  v.  Wilkie,  743,  749. 
Winchell  v.  Coney.  56. 
Winchester  v.  Paine.  151,  1114,  1215. 
Windes  v.  Russell,  610,  640. 
Windett  v.  Union  Mut.  L.  Ins.  Co., 

1020. 
Windham     County     Sav.     Bank    v. 
Himes,  738. 

V.  Hughes,   743. 
Windsor  v.   China,   441. 

V.  Evans,  1209. 
Windt  V.  Gilleran,  850. 
Winebrenner  v.  Johnson,   182,   183, 

184. 
Winegard  v.  Fanning,  91. 
Wing  V.  De  la  Rionda,  694. 

V.  Gray,  490. 

V.  Hayford,  640,  1065. 
Wingfield   v.    Neal,  565. 
Winkleman  v.  Kiser,  90,  94. 

V.  White,  503,  504. 
Winkler  v.  Madgeburg,  793. 
Winnebago  County  v.  Brones,  1010. 
Winship  v.  Jewett,  528. 

V.  Pitts,  799. 
Winslow    V.    Clark,    146,    147,    172, 
1234. 

V.  McCall,  85,  179,  186,  188,  843, 
862,  881,  902,  921,  923. 

V.  Merchants'  Ins.  Co.,  714,  717. 
Winsted   Bank  v.  Webb,  409. 
Winston  v.  Westfeldt,  368. 
Winter  Loeb  &  Co.  v.  Montgomery, 

18,  136. 
Winters  v.  Bank,  102,  103. 

V.  Henderson,  584. 

V.  Hub  Mining  Company,  736. 
Winton's  Appeal,  132.  967,  1043. 
Wisconsin  v.  Titus,  584. 
Wisconsin     National     L.     &     Bldg. 

Ass'c.  V.  Pride,  733. 
Wise  V.  Fuller,  247. 
Wisner  v.  Chamberlin,  56. 
Wiswall  V.  -A.yres,  402. 

V.  Hall,    878. 

V.  Sampson,  765,  825. 


TABLE    OF 
References  are 
Wiswell  V.  Baxter,  80. 
Withers  v.  Carter,  872. 

V.  Greene,  418. 

V.  Jacks,   721. 

V.  Little,  340. 

V.  Morrell,  495. 

V.  Powers,  498,  500. 
Witmer's  Appeal,  303,  496. 
Witt  V.  W^whirter,  1100. 

V.  Trustees,  1189. 
Wittmeir  v.  Tidwell,  996. 
Wochoska  v.  Wochoska,  134. 
Woehler   v.    Endter,   656,   717,   722, 

725. 
Woener's   Admr.,   44. 
Wolbach    V.    The    Lehigh    Building 

Assoc,  515. 
Wolcott  V.  Ashenfeher,  383. 

V.  Hamilton,  718. 

V.  Henninger,    540. 

V.  Schenck,   570,  573,  624,  627, 
637. 

V.  VanSantvoord,  49,  344. 

V.  Weaver,    509,   510,    513,    519, 
522. 
Wolf  V.  Banning,  146,  160. 

V.  Smith,  1065. 
Wolfe  V.  Harris,  136,  213. 

V.  Jaffray,  183. 
Wolfers  V.  Duffield,  902. 
Wolfert  V.  Milford  Sav.  Bank,  640. 
Wolff  V.  Ward,  146,  604,  917. 
Wolfinger  v.  Betz,  485. 
Womble  v.  Harsey,  19. 
Wood  V.  Augustine,  80. 

V.  Barstow,  344. 

V.  Brown.  982. 

V.  Chew,  155. 

V.  Clark,  661. 

V.  Good  fellow,  80.  82. 

V.  Goodwin.  HI,  1179. 

V.  Gosling,  396. 

V.  Harman,  123.  127. 

V.  Harper.  599. 

V.  Holland,     1135,     1172,     1173, 
1177. 

V.  Hubbell,  423. 

V.  Jackson,   14,  721. 


CASES.  1869 

to  Sections. 

Wood  V.  Jones,  1247. 

V.  Kroll,   652. 

V.  Mann,  664,  666,  678. 

V.  Martin,  711. 

V.  Merchants'    Saving   Loan    & 
Trust  Co.,  344. 

V.  Morehouse,  161,  547,  553. 

V.  Nisbit,  167. 

V.  Smith,  110,  112. 

V.  Spalding,  595. 

V.  Stanberry,  224. 

V.  Surr,    1217. 

V.  Terry,  133,  547. 

V.  Trask,  102. 

V.  Travis,    417. 

V.  Whelen,  716. 

V.  Williams,  92,   122,   132. 

V.  Wood,  477. 
Woodard  v.  Bird.  721. 
Woodbury  v.  Swan,  239,  748. 
Wooden  v.  Haviland,  107. 
Woodford  v.  Bucklin,  987. 

V.  Leavenworth,    464,    500. 
Woodhull  V.  Osborne,  573,  574,  625, 

640. 
Wooding  V.  Malone,  793. 
Woodruff  V.  Adair,  944. 

V.  Bush,  656. 

V.  Depue,  94,  105,  127,  201,  646, 
417. 

V.  Morristown    Institution    for 
Savings,  417,  418. 

V.  Mutchler,   125. 

V.  Stickle,  243. 

V.  Wicker,  711. 
Woods  V.  Love,  143,  183. 

V.  McGraw.  1145. 

V.  Monell,  542.  570,  573,  574. 

V.  North,  1008. 

V.  Shields,   966. 

V.  Spalding.  584,  599. 

V.  Wallace,  1211. 

V.  Woods.  1213. 
Woodward  v.  Brown,  602,  746,  1003. 

V.  Elrod,  55. 

V.  Johnson,  380. 

V.  Pickett.  1029. 

V.  Wood,  95,  1234. 


1870  TABLE    OF 

References  are 
Woodward's  Appeal,  244. 
Woodworth  v.  Zimmerman,  341,  352, 

362. 
Woolam  V.  Hearn,  1245. 
Wooldridge  v.  Bowmar,  843. 

V.  Boyd,  366. 
Wooley  V.  Holt,  790. 
Woolf  V.  Leicester  Realty  Co.,  539. 
Woolner  v.  Wilson,  167. 
Woolsey,  In  re,  623. 
Woolworth  V.  Parker,  541. 
Woonsocket  Sav.  Inst.  v.  Goulden, 

1200. 
Wooster  v.  Sugar  River  Valley  R. 

Co.,  294. 
Wooten  V.  Sugg,  1020. 
Wooters  v.  Pinkel,  1116. 
Wootton  V.  White,  717. 
Worcester  v.   City  of   Boston,  516. 
Workingmen's     Mut.     BIdg.     Loan 

Asso.  V.  McGillick,  627. 
Workman  v.  Greening,  1036. 
World  Bldg.  &  Invest.  Co.  v.  Mar- 

lin,  719,  808. 
Worley  v.  Moore,  400. 
Worrall  v.  Harford,  1012. 

v.  Munn,  679. 
Worrill  v.  Coker,  799,  801. 
Worsham    v.    Hardaway's    Adm'r, 

671. 
Worsley  v.  Scarborough,  367,  1114. 
Worth  V.  Hill,  584. 

v.  Knickerbocker     Trust     Co., 
338. 

V.  Newlin,  660. 

V.  Worth,   1003. 
Worthington  v.  Wilmot,  1087. 
Wortman  v.  Wortman,  262. 
Wright,  In  re,  993. 
Wright  V.  Atkyns.  302. 

V.  Briggs,  743. 

V.  Bundy,  127,  459. 

V.  Case,  808. 

V.  Churchman,  621. 

V.  Conservative  Invst.  Co.,  516, 
1006. 

V.  Dudley,  485. 

v.  Howell,  184,  1244. 


CASES. 

to  Sections. 

Wright  v.  Eaves,  74.  82,  138,  165. 

V.  Langley,  155,  355,  1020. 

V.  Leclaire,  80. 

V.  Morley,   1124. 

V.  Neely,  1006. 

V.  Nutt,  601. 

V.  Parker,  93,  103. 

V.  Patrick.    540. 

V.  Remington,  438,  439. 

V.  Rose,  839. 

V.  Ross,  609. 

V.  Shumway,  344,  360. 

V.  Sperry,  94,  198,  201. 

V.  Stevens,   537. 

V.  Taylor,  71. 

V.  Troutman,  92. 

V.  Vernon,  760.  773. 

V.  Whitehead,   1061,   1246. 

V.  Whiting,  67. 

v.  Wright,   267,   473,    1145. 
Wurcherer  v.  Hewett,  212,  213,  350, 

485. 
Wyandotte  State  Bank  v.  Murray, 

618. 
Wyant   v.    Pottorff.    1006. 
Wyatt  v.  Dufrene,  598. 
WyckoflF  v.  Devlin,  274. 

V.  Scofield,  788.  790,  803,  806. 
Wyeth  V.  Braniff,  412. 
Wykes  v.  City  of  Caldwell,  712. 
Wylie  V.  Karner,  1007,  1010. 

v.  McMakin,    182. 

V.  Welch,  1107. 
Wyman  v.  Fowler,  344. 

V.  Friedman,    1087. 
Wynkoop    v.    Cowing,    1038,    1044, 

1047. 
Wynne    v.    Ingleby,    490. 

v.  Newborough,    776.   778,   788. 

V.  Styan,  1129. 
Wjrtheville  Crystal  Ice  &  Dairy  Co. 
V.    Frick  Co.,  561. 


Yager  v.    Merkle,    160. 
Yale   V.   Dederer,   231,  232. 
Yarborough  v.  Newell,   1247. 


TABLE    OF 
References  are 

Yarnell  v.   Moore,  73. 
Yates  V.  Hambly,  170,  723. 

V.  Hornby.  1234. 

V.  Woodruff,    557. 
Yellowly  V.  Beardsley,  929. 
Yelverton  v.  Selden,  1234. 
Yerby  v.  Hill,  533. 
Yerger  v.  Barz,  864. 
Yndart  v.  Den,  719. 
Yokam  v.  White,  43. 
York  V.  Allen,   133,  495.  498,  605. 
York    V.    West,    476. 
York  &  Jersey  Steamboat  Ferry  Co. 
V.  Associates  of  the  Jersey 
Co.,  621. 
York  Co.  Savings  Bank  v.  Roberts, 

473. 
Ycrks  V.  Peck,  259. 
Yorn  V.   Bracken,  352. 
Youle  V.  Richards,  1029,  1037,  1038, 

1042,  1043,  1206. 
Youman  v.    Elmira   &  W.   R.    Co., 

1234. 
Young  V.  Algeo,  699. 

V.  Bloomer,  618,  654. 

V.  Brand,  516,  683. 

V.  Chandler,  714. 

V.  Godbe,    53. 

V.  Guy,  418. 

V.  Keogh,  533,  614,  656. 

V.  McKee,  395. 

V.  McLean,  62. 

V.  Miner,   1233. 


CASES.  1871 

to  Sections. 

V.  Montgomery    &    E.    R.    Co., 

787.  829. 
V.  Tarbell,    156. 

V.  Trustees,  223,  251,  252,  747. 
V.  Whitney,  167. 
V.  Williams,  1129,  1208. 
V.  Wood,  537,  628. 
V.  Young,  988,  990. 
Youngman  v.  Elmira  &  W.  R.,  110, 

151. 
Younts  V.  Starnes,  97. 
Youse  V.  M'Creary,  218. 

Z. 

Zable    V.    Masonic    Savings    Bank, 

540.  658. 
Zabriskie  v.  Smith.  126. 
Zaegel  v.  Kuster,   156,   161,  1098. 
Zahradnicek  v.  Selby,   1185. 
Zahrt,  In  matter  of,  861. 
Zahrt's  Estate,  861,  890. 
Zarkowski  v.  Schroeder,  682. 
Zeiter    v.    Bowman.    150,    177,    367, 

374,  758,  804.  806. 
Zeller   v.   Eckert.  74. 
Zimmerman  v.  Schoenfeldt,  389. 
Zinkeisen   v.    Lewis,  661. 
Zlotoecizski  v.  Smith,  928,  930. 
Zoeller  v.  Riley,  367. 
Zollman  v.  Moore,  683. 
Zug  v.   Forgan,   295,  347. 
Zundel  v.  Tacke,    162. 
Zwickey  v.  Haney,  527. 


INDEX  TO  FORMS. 


References   are    to    Pages. 

Affidavit. 

affixing  notice  of  foreclosure  by  county  clerk,  1725. 

affixing  notice  of  sale  to  outer  door  of  court  house,  1725. 

application  for  order  for  possession,  1704. 

application  for  receiver  of   rents,   1705. 

motion  for  reference  to  distribute  surplus.  1711. 

of  filing  notice  of  pendency  of  action,   1675. 

posting  notice  of  sale,  1693. 

publishing  notice  of  sale,  1726. 

sale  under  foreclosure  by  advertisement,   1727. 

serving  notice  of  sale,  1726. 
Answer. 

general  form,  1671. 

infant  defendants,  1673. 
Bond. 

of   receiver.   1709 
Certificate. 

of  clerk  as  to  who  have  filed  claims  to  surplus,  1714. 

of  filing  lis  pendens,   1675. 
Complaint. 

action  for  strict  foreclosure,  1718. 

foreclosure  of  loan  association  mortgage,  1668. 

foreclosure,  of  mortgage  executed  by  infants  pursuant  to  order  of 
court,   1665. 

general.   1661. 
Creditor. 

claim  of  before  referee,  1714. 
Deed. 

sheriff's  or  referee's,  on  foreclosure,  1702. 
Deficiency. 

execution  for,  1701. 

judgment  for,   1700. 

request  to  docket  judgment  for,  1700. 
Mortg.  Vol.  II.— 118.  1873 


1874  INDEX  TO  FORMS. 

References   are    to    Pages. 

Execution. 

for  deficiency,  1701. 
Foreclosure  by  Advertisement. 

affidavit  of  affixing  notice  by  county  clerk.   1725. 

affidavit  of  affixing  notice  of  sale  to  outer  door  of  court  house,  1725. 

affidavit  of  fact  of  sale,  1727. 

affidavit  of  publishing  notice  of  sale,  1726. 

affidavit  of  serving  notice  of  sale,  1726. 

notice  of  sale  under,  1723. 
short  form,  1724. 

petition  for  obtaining  possession  under,  1728. 
Infants. 

general  answer,   1673. 
Judgment. 

for  deficiency,  1700. 

request  to  docket,  1700. 
Judgment  of  Foreclosure  and  Sale. 

direction  to  be  inserted  in  judgment  for  a  sale  of  separate  parcels 
in  inverse  order  of  alienation,  1689. 

part  only  due;  premises  sold  in  one  parcel,  1687. 

part  only  due;  premises  to  be  sold  in  parcels,  1688. 

provision  t®  be  inserted  in  judgment  for  sale,  when  one  of  the  de 
fendants  is  a  mere  surety,  1690. 

whole  amount  due,  1684. 
Judgment. 

strict  foreclosure,  1721. 
Notice. 

application  for  order  of  reference  and  judgment,  1677. 

claim  to  surplus  moneys,  1710. 

motion  for  reference  to  distribute  surplus,   1712. 

motion  to  confirm  referee's  report  as  to  surplus,  1716. 

no  personal  claim,  1673. 

object  of  action,   1673. 

of  sale  under  judgment,  1690. 

pendency  of  action,   1674. 

sale  on  foreclosure  by  advertisement,  1723. 
short  form,  1724. 
Obtaining  Possession. 

petition  for,  under  foreclosure  by  advertisement,  1728. 

precept   for,    1730. 
Order. 

appointing  receiver  of  rents,   1707. 

confirming   report   of    referee   and    directing    distribution   of   surplus 
moneys,  1717. 

confirming  report  of  sale,  1697. 

directing  sale  of  balance  of  mortgaged  premises,  1699. 

extending  time  to  redeem,  1722. 

final  in  strict  foreclosure,  1722. 


INDEX  TO  FORMS.  1875 

References   are    to    Pages. 
Order — con  tinned. 

final  in  summarj^  proceedings,  1730. 
for  possession,  1705. 

of  reference  as  to  claims  to  surplus,   1712. 
reference  preliminary  to  judgment,   1677. 
Petition. 

obtaining   possession   by    purchaser    under    foreclosure   by   advertise- 
ment, 1728. 
to  sell  balance  of  mortgaged  premises,  1697. 
Precept. 

to  obtain  possession,   1730. 
Receiver. 

affidavit  for  order  appointing,  1704. 
bond  of,  1709. 
order  appointing,  1707. 
Redemption. 

order  extending  time  for,  1722. 
Referee. 

deed  on  foreclosure,  1702. 

report  of  as  to  who  are  entitled  to  surplus,  1715. 
report  of  sale,  1693. 
Report  of  Referee  Preliminary  to  Judgment. 

whole  amount  due ;  no  infants  or  absentees,  1680. 
whole  amount  due ;  infants  or  absentees,  1683. 
whole  amount  not  due ;  no  infants  or  absentees,  1681. 
Sale. 

affidavit   of   posting  notice,    1693. 
notice  of,  1690. 
referee's  report  of,  1693. 
terms  of,  1691. 
Sheriff. 

deed  on  foreclosure.  1702. 
Strict  Foreclosure. 

complaint  in  action  for,   1718. 
final  order  in,  1722. 
judgment  for,  1721. 
Subpcena. 

reference  as  to  surplus  moneys,   1712. 
to  attend  before  referee,  1679. 
Summary  Proceedings. 
final  order  in,  1730. 
warrant  to  obtain  possession,  1731. 
Surplus  Moneys. 

affidavit  on  motion  for  reference  to  distribute.  1711. 

certificate  of  clerk  as  to  who  have  filed  claims  to,  1714. 

claim  of  creditor  to,  on  reference.  1714. 

notice  of  claim  to,  1710. 

notice  of  motion  for  reference  to  distribute,  1712. 


1876  INDEX  TO  FORMS. 

References   are    to    Pages. 

Surplus   Moneys — continued. 

notice  of  motion  to  confirm  referee's  report,  1716. 

order  confirming  referee's  report  and  directing  distribution  of,  1717. 

order  of  reference  as  to  claims  to,  1712. 

report  of  referee  as  to  who  are  entitled  to,  1715. 

subpoena  to  attend  reference,  1713. 
Terms. 

of  sale,  1691. 
Warrant. 

constable's  return  upon,  1732. 

for  possession  in  summary  proceedings,  1731. 


GENERAL  INDEX. 


References  are  to  Sections. 


ABANDONMENT. 

of  premises,  foreclosure  on,  before  debt  due,  40. 
ABSENTEES.     See  Parties. 
ACCIDENT.     See  Mistake. 

and    surprise,    grounds     for    setting     sale    aside,    644.       See     Sale, 
Setting   Aside,    Grounds   for. 
ACCOUNTING. 

by  purchaser  in  possession  during  period  for  redemption,   1072. 

See  Redemption. 
for  rents  and  profits,  184,  1214. 

actual  amount  of  rents  and  profits  may  be  shown  by  mortgagor, 

when,  1214. 
actual  amount  of  rents,  mortgagee  is  chargeable  with,  when,  1214. 
equity  has  jurisdiction  to  enforce,   1214. 

excess    over    improvements    cannot   be    recovered,    when,    1214. 
may  be  compelled  by  junior  mortgagee,  upon  redemption,  180. 
for  rents,  taxes  and  disbursements  for  improvements,  184. 
on  redemption,   184. 

by  redeeming  judgment  creditor,  184. 
ACKNOWLEDGMENT. 

by  mortgagor,  not   remove  bar  against  his  grantee,  82. 
foreclosure,  complaint,  necessity  of  allegation  as  to,  339,  341. 
Of  Debt. 

created  by  recital  of  mortgage  in  a  deed,  82. 
may  remove  bar,  81. 

must  be  made  by  debtor  or  in  his  behalf,  81. 
must  be  made  to  creditor  or  his  agent,  81. 
want  of,  is  matter  of  defense,  339. 
ACTION. 
At  Law. 

allowable   when,    11. 

where  mortgaged  property  not  sufficient,  17. 
as  a  concurrent   remedy,   11. 
barred  by  foreclosure,  during  pendency  of  latter,  11,  273. 

1877 


1878  GENERAL    INDEX. 

References  are  to  Sections. 
ACTION— continued 
At  Law — continued. 

cannot  be  brought  after  foreclosure,  without  leave  of  court.  273. 
commencement  of  foreclosure  prevents,  273. 

consent  of  court  may  be  granted  nunc  pro  tunc  and  ex  parte,  274. 
may  be  maintained  against  guarantor  of  mortgage  debt,  253. 
not  maintainable  during  foreclosure,  11. 
exception  to  the  rule,  11. 
reason  for  the  rule,  11. 
on  note  or  bond,  273. 

effect  of  commencement  of  foreclosure,  273. 
on  one  of  the  several  notes  secured  by  a  mortgage,   101. 
when    bars    foreclosure,    391-393. 
by  and  against   receivers,   788. 

by  assignee  against  mortgagee,  on  the  latter's  guaranty,  does  not  re- 
quire  consent   of   court,   274. 
by  prior  mortgagee  to  foreclose,  37. 

effect  on  junior  mortgagees,  37.    See  Mortgagees. 
by  purchaser  relieved  from  purchase,  to  recover  disbursements,  costs, 

etc.,    668. 
concurrent  and  successive  remedies  to  recover  debt  secured,  310. 
equitable,    to    set    aside    mortgage    for    fraud,    421.      See    Equitable 

Action. 
for  damages,  may  be  maintained  by  ejected  tenant  against  lessor,  177. 
For  Debt. 

in  New  Jersey,  12. 
in   Pennsylvania,   12. 
for    deficiency    against    wife's    separate    estate    not   barred    by    fore- 
closure,  274. 
foreclosure,    necessity    of    stating    whether    action    at    law    has    been 

brought  to  recover  debt,  347. 
In  Equity. 

for  foreclosure  of  mortgage,  7.     See  To  Foreclose,  this  title, 
exclusive  method  in  California,  3. 
in  Montana,  3. 
in  Missouri,  3. 
in  Oregon,  3. 
usual  method  in  all  States,  7. 
jurisdiction.     See  Jurisdiction. 

judgment  for  deficiency,  9.     See  Deficiency;  Judgment  for. 
mortgage  invalid,  judgment  had  on  bond,  7.     See  Mortgage;  In- 
valid. 
nature  of  proceedings,  8. 

in  rem   and  not  in  personam,  8. 
not  a  mere  action   for  possession,  8. 
the   usual   method    of    foreclosure,   7. 
independent;   not  lie  to  enforce  claim  of  mortgagee  for  taxes  paid, 
516.      See    Costs    and   Disbursements;    Taxes. 


GENERAL    INDEX.  1879 

References  are  to  Sections. 
ACTlO'i^— continued. 

joinder  of,  in  mortgage  foreclosure,  333. 
legal   and   equitable ;    distinction   abolished    in   Ohio,   437. 
mistake ;   in  describing  premises ;  new  action  to  correct,  432. 
not  lie  in   favor  of  purchaser  at   foreclosure  to  correct   misdescrip- 
tion  in  mortgage,  710. 
not  necessary   to   put  purchaser   at  foreclosure   sale   into   possession, 

723. 
On  Bond. 

waiver  of  right  to  foreclose,  391.     See  Bond  Action  on. 
On  Note. 

and  mortgage  at  same  time,  273. 

where  land  situated  without  the  state,  273. 
and  to  foreclose  is  not  transitory,  36. 

discontinued  by  commencement  of  action  to  foreclose,  392. 
illegal  consideration  as  defense,  408. 
stay  pending  foreclosure,  393. 
other  remedies  not  impaired  by  accepting  mortgage,  310. 
Pendency.      See   Lis    Pendens. 
surplus ;    enforcement  of   claim   for,  892. 
to  declare  debt  lien  on  land,  51. 

effect  of  provision  against  forfeiture,  51. 
To  Foreclose. 

and  on  note   is  transitory,  Z6. 
commenced   by   service   of   summons,   259. 
requisites   of   summons,  259. 
service  of  summons.     See  Summons. 
commencement  of,  prevents  action  at  law,  273. 
consolidation  of  actions,  334. 
effect  of  suit  on  note  in  another  county,  11. 
how  brought,  259. 

not  dismissed  because  subsequent  incumbrancers   not  made  par- 
ties,  178. 
requisites  of  summons,  259. 
service    of    summons.      See    Summons. 
affidavit  to  procure,   requisites,  263. 
submission   to   jury,    19. 
submission  to  jury  on  counter-claim,   19. 
tender  after  suit  brought,  275.     See  Tender. 
what  claims  may  be  foreclosed,  276.     See  Foreclosure. 
To  Redeem.     See  Redemption. 

assignee  of  mortgage  absolute,  a  necessary  defendant,  200. 
cannot   be   maintained   after   mortgage   paid,    180. 
may  be  maintained  by  owner  of  equity  of  redemption,  not  made 
a  party,  148. 
upon   promise  to  assume   mortgage,   356. 
ACTS  IN  PAIS.     See  Estoppel  in  Pais. 


1880  GENERAL    INDEX. 

References  are  to  Sections. 

ADJOURNMENT. 

Of  Sale.    See  Sale,  606,  607. 

no  fees  allowable  to  officer  for  services,  980. 
published  notice  of,  need  not  describe  lands,  607. 
of  trial  of  foreclosure,  not  authorize  change  of  venue,  529. 
ADMINISTRATOR.    See  Executors  and  Administrators,  343. 
foreign,  may  execute  power,  313. 
of  deceased  trust  creditor,   127. 

necessary  party,  127. 
of  mortgagee,  may  purchase  at  foreclosure  sale,  609.    See  Sale;  Who 

May  Purchase. 
of   mortgagor,   not  necessary   defendant  to   a   foreclosure,   136.     See 
Parties  ;  Defendants. 
ADVANCES  AND  ADVANCEMENTS, 
actual  consideration,  404. 
by  mortgagee  to  protect  title.     See  Costs  and  Disbursements. 

interest  on,  1022. 
by  mortgagor  to  mortgagee;  application  on  debt,  493. 
mortgage  to   secure ;    failure  to  make ;   set  off,  449. 
of  money  on  parol  agreement  to  execute  mortgage,  331. 
mortgage   to    secure;    priority   over    subsequent   judgment,   868. 
protection  of  junior  incumbrancers,  493. 
statute  of  frauds,  331. 

to  be  made  in  future;  mortgage  to  secure;  foreclosure,  404. 
unrecorded  mortgage  to  secure,  868. 
ADVERSE  CLAIMANTS. 

to  premises,  not  proper  defendants,  213.     See  Parties,  Defendants. 
except  in  Indiana  and  Kansas,  213. 
ADVERSE  CLAIMS. 

cannot  be  litigated  in  foreclosure,  213,  482. 
except  in  Indiana  and  Kansas,  213. 
ADVERSE    POSSESSION. 

bars  redemption  when,   1252.     See  Redemption. 
By  Mortgagor. 

becomes  such  upon  breach  of  conditions,  74. 
defeats  mortgage  in  same   manner  as   it  might  afifect  other   de- 
mands. 75. 
mortgagor  not  tenant  at  will,  75. 
not  become  such  by  neglect  to  pay  interest,  74. 
presumption  not  conclusive,  75. 
presumptive  evidence  that  debt  is   satisfied,  74. 
what  sufficient  to  bar  foreclosure,  74. 
what  sufficient  to  divest   mortgagee's  right,  74. 
by  several  successive  owners,  77. 

writ  of  assistance  to  dispossess  adverse  claimant,  727. 
ADVERSE  TITLE. 

cannot  be  set  up  in  mortgage  foreclosure,  482. 


GENERAL    INDEX.  1881 

References  are  to  Sections. 
ADVERSE   TITUE— continued. 

dower  right;  not  litigated  in  foreclosure,  486. 
effect  of  making  claimants   defendants,  485. 
no  defense  on  foreclosure,  482-484. 
AFFIDAVITS. 

admissibility  in  evidence  on  reference  to  compute  amount  due,  509, 

513. 
as  to  dates  and  places  of  posting  notices,  552. 

sufficiency  of,  552. 
of   defense,   sufficiency  of,  401. 
of  proceedings   on   statutory   foreclosure,   953-960. 
of  publication  of  notice  of  sale  under  school  fund  mortgage,  1029. 

effect  of   failure  to  give,   1029. 
of  publisher ;  variance  between  sheriff's  return  and,  552. 
of  service  by  mail ;   statutory  foreclosure,  927. 
on  motion  for  reference  to  compute  amount  due,  505. 
sufficiency  of  by  printer,  552. 
sufficiency  of  setting  up  defense,  401. 

to  secure  order  for  service  of  summons  by  publication,  263. 
requisites  of,  263. 
AFTER-ACQUIRED  TITLE. 

inures  to  mortgagee's  benefit,  451,  455. 
estoppel,  451.  455. 
AGENT.     See   Principal  and  Agent. 
AGREEMENT.     See   Contract. 

barring  equity  of  redemption.     See   Barring   Equity-Redemption. 
ALABAMA. 

court  of  equity  has  jurisdiction  to  foreclose  in,  29. 
stipulation  delaying  strict  foreclosure  in,  966. 
venue  in  mortgage  foreclosure  in,  29. 
ALTERATION. 

of   mortgage ;    defense   of   in    foreclosure,   399.     See   Answers   and 
Defenses. 
AMENDMENT. 
Of  Complaint. 

to  correct  mistake  in  description,  432. 
Of  Decree. 

error  in  describing  premises;  compelling  purchaser  to  take  title, 
711. 
Of  Judgment. 

not  necessary  to  compel  purchaser  to  complete  purchase,  664. 
of  order  to  sell  premises  as  whole,  567. 
of  proofs  of  statutory  foreclosure,  956. 
To  Correct  Mistake.     See  Mistake. 
AMOUNT. 

allegation  of  in  complaint,  339,  34L 


1882  GENERAL    INDEX. 

References  are  to  Sections. 

AMOUNT— continued. 

payable    on    redemption.      See    Redemption;    Amount    Payable    to 
Effect. 

error  in  ascertaining  amount  due,  202. 

effect   of    redemption.      See    Redemption,    Terms,     Conditions, 
Mode  and  Effect  of. 
reference  to  compute ;  notice ;  motion ;  proceedings,  502  et  seq. 
redemption,   error   in   ascertaining,   1202. 

statement  of   in  notice  on   statutory  foreclosure,  928,  932,  953. 
annuitant  cannot  redeem.     See  Redemption. 
ANNUITY. 

annuitants    of    subsequent    incumbrancers    not    necessary    defendants, 

192. 
annuitants  to  be  paid   from  proceeds  of  premises,  necessary  defend- 
ants,   164. 
ascertainment  of  dower  rights  in  surplus  moneys,  881. 
Carlisle  table  of   Mortality,  881. 
ANSWERS  AND  DEFENSES. 

administrator  of  mortgagee ;  not  concluded  by  payment  to  heirs,  469. 
admission  of  execution  admits  cause  of  action,  401. 
advances ;    mortgage   to   secure ;    failure   to   make ;    set-off,   449. 
Adverse  or  Paramount  Title. 

cannot  be  set  up  as  a,  482. 

effect  of  making  claimants  defendants,  482,  et  seq. 

not  litigated   unless   set   up  by   claimant,   485. 
affidavit  of  defense,  sufficiency,  401. 
affirmative  relief,  if  desired,  must  be  demanded,  447. 
after-acquired  title ;    inures  to  mortgagee's  benefit,  455. 
after  opening  default,  528. 

against  assignee  of  bond  and  mortgage,  412,  418. 
against  assignee  of  mortgage,  412. 

payment  by  assumption  of  prior  mortgage,  472. 

securing   non-negotiable    instrument,   418,   419. 
against  bonu  fide  purchaser  of  negotiable  paper  secured,  416,  417. 
against  fraudulent  assignee  of  mortgage,  414. 
against  purchase  money,   for  fraud,  422,  424. 
against  purchaser   subject  to  mortgage;    estoppel,  459-461. 
against  voluntary  assignee  in  bankruptcy,  413. 
Agency.     - 

denial  of  authority  to  make  demand,  462. 

payment  by  third  person;  ratification,  468. 
all  questions  necessary  to  complete  justice  are  proper  defenses,  489. 
alteration  of  mortgage,  399. 

amendment  to  secure  application  of  rents  and  profits,  468. 
answer   by   claimants   of   interest   in   equity   of   redemption,   385. 
answers   by   only   part   of   defendant;   trial   of   issues,   530. 


GENERAL    INDEX.  1883 

References  are  to  Sections. 
ANSWERS    AND    DEFENSES— continued. 

answer   by    senior    mortgagee    made   party   to    foreclosure    of    junior 

mortgage,  332. 
answer  should  set  up  new  matter ;  general  answer  insufficient,  382. 
any  defense  available  in  action  at  law,  382. 
any  one  interested  in  equity  of  redemption  may  answer,  382. 

claimants  of  interest  in,  385. 

wife  cannot   answer   separately   in   New  Jersey,   382. 
appeal ;  costs  of  both  courts ;  taxes ;  application  on  mortgage,  469. 
application  of  payments ;   whenever  upon  mortgage  or  open  account, 

469. 
Assignment  of   Mortgage. 

defense  of  payment  as  against  assignee,  468. 

equitable,  468. 

of  note  and  mortgage  before  maturity;  payment  after,  468. 
assumption  of  mortgage ;   denial  of,  481. 

failure  of  consideration,  481. 

qualified   by  contemporaneous   agreement,   481. 
attorney's  fee ;  payment  of,  470. 

bankruptcy ;   assignment   for  creditors  by  mortgagee,   413. 
boundaries ;  fraud  as  to,  429. 

breach  of  covenant  of  quiet  and  peaceable  possession  as,  464. 
breach  of  independent  or  collateral  covenant,  464. 
by  creditor   of  mortgagor,  383. 
by  grantee  not  assuming  mortgage,  385. 

by  prior  incumbrancers ;  necessity  and  sufficiency  of  answer,  487. 
cannot    assail    subsequent    incumbrance    of    codefendant    by    answer; 

cross-bill  requisite,  385. 
cause  of  action  not  accrued ;  nothing  due,  462. 
Claims. 

as  to  paramount  title  cannot  be  set  up,  482,  484. 

as  to  prior  and  paramount  title  cannot  be  set  up,  482,  484. 

as  to  priority,  489. 

when  claims  to  may  be  set  up,  489. 
claimants  of  interest  in  equity  of  redemption  may  answer,  385. 
condition  as  to  perfecting  title ;  non-performance,  463. 
condition  precedent ;  non-performance,  463. 
Consideration. 

illegal  or  void,  406. 

insufficiency   of ;    partial   failure,   402. 

want  of,  401. 
Costs. 

on  appeal ;   application  on  mortgage,  469. 

payment  of,  470. 
counter-claims,  440  ct  seq. 

and  set-off,  440  et  seq. 


1884  GENERAL    INDEX. 

References  are  to  Sections. 

ANSWERS  AND  DY.Y'ENSES— continued. 

COVENA  NT. 

independent   or  collateral;    breach,   464. 

to  pay  existing  incumbrance;  breach,  463. 
Cross-bill  or  Cross-complaint. 

setting  off  debt  due  mortgagor,  440. 

setting    up   title   under   tax-sale,   482,   484. 
Default. 

against    defendant's   claiming  interest;    conclusiveness,    502. 

failure  to  appear  at  trial  after  answering,  507. 

or  admission;  reference  to  compute  amount,  502. 

reference  to  compute  amount  due,  507. 
defect  in  or  want  of  title,  499. 

of  parties;  objection  by  parties  personally  liable  for  debt,  390. 

of  title  of  mortgagor;  is  not,  483. 
defective  execution  and  record,  398. 
defective  service  on  other  defendant,  388. 
defense  confined  to  grounds  set  up  in  answer,  387. 
defense  of  payment  as  against  assignee,  468. 
defenses  against  assignee  in  bankruptcy,  413. 
demand  by  agent ;  agency  denied ;  proof  of  authority,  462. 
denial  of  execution  and  delivery  of  mortgage,  394. 
denial  of  title  in  mortgagor,  501. 
denial  of  validity  of  title;  conclusion  of  law,  451. 
devisee   of   mortgaged   property  may   answer,   385. 
discharge  by  joint  creditor;   validity,  477. 

and  satisfaction  as,  477. 

procured  by  fraud ;  innocent  purchasers,  477. 

satisfaction ;  what  constitutes  and  how  alleged,  477. 
disputed  title;  controversies  between   defendants,  483. 
dower;  right  subsequently  accrued,  486. 
duress,  defense  of ;  relief,  436  et  seq. 

as  a  personal  defense,  436. 

defense  available  to  surety,  436. 

of  person ;  relief,  439. 

Ohio  doctrine,  437. 

over  married   women,   relief,  438. 
ejectment;  against  mortgagor;  eviction,  496. 

election  in  which  of  several  foreclosures  to  set  up  counterclaim,  445. 
embezzlement  of  proceeds  by  agent  procuring  loan,  as,  401. 
eminent  domain ;  condemnation   money  paid  to  mortgagor,  471. 
equitable  assignment  of  mortgage,  468. 
equities;  between  incumbrancers;   adjustment,  493. 
Estoppel,  451  et  seq. 

against   married  women,  454. 

against   purchaser   of   mortgaged   premises   subject   to   mortgage, 
459. 


GENERAL    INDEX.  1885 

References  are  to  Sections. 

ANSWERS  AND  DEFEASES— continued. 
Estoppel — continued. 

agreement    to    release    part    of    mortgaged    premises,    456. 
As  Against   Purchaser  of   Mortgage. 
to  set  up ;   usur}',  453. 

or  failure  of  consideration,  453. 
or  fraud  of  mortgagee,  453. 

or  misappropriation   of   money  by   mortgagee,   453. 
as  against  third  persons,  457,  458. 
by  acts,  declarations  and  agreements,  453. 
by  failure  of  interested  party  to  give  notice  of  his  rights,  458. 
by  silence  as  to  his  lien,  458. 
by  silence  at  public  sale,  458. 
fraud  or  concealment,  457. 
in  pais  against  mortgagor,  451. 
inures  to  mortgagee,  451. 
knowledge  of  conveyance  by  mortgagor,  456. 
necessity  of   fraudulent  intent,  457. 

of  mortgagee ;  as  against  purchasers  at  public  sale,  458. 
of  mortgagee,  as  against  purchasers  from  mortgagor,  456,  457. 
of  purchaser  subject  to  mortgage,  453. 
to   complain  of   indefinite   description,  451. 
to  contest  validity  of  other  notes  of  same  series,  451. 
to  deny  authority  of  mortgagee  as  agent  of  foreign  corporation, 

451. 
to  deny  his  appointment  and  authority  as  executor,  452. 
to  deny  purchaser's  assumption  of  debt,  453. 
to  deny  that  mortgage  covers  entire  tract  intended,  451. 
to  deny  title  in  mortgagor,  452. 
to  deny  validity  of  title,  451,  452. 
to  dispute  recitals  in  mortgage,  451. 
to  plead  outstanding  title  in  third  person,  452. 
to  set  up  defect  of  title,  452. 

to  set  up  partnership,  and  want  of  authority  in  mortgagee,  451. 
to  set  up  property  held  by  him  in  trust,  452. 
to  show  mortgage  void  for  usury,  as  against  assignee  in  good 
faith,  453. 
eviction  of  mortgagor,  498. 
extension  of  time  of  payment ;  consideration,  466,  467. 

necessity  for  doing  equity,  466. 
Failure. 

of    consideration,    401. 
for  assignment,  412. 
partial  failure,  402. 

purchase  of  equity  of  redemption  cannot  set  up,  401. 
where  mortgage  on  other  land  to  secure  land  contract,  402. 


1886  GENERAL    INDEX. 

References  are  to  Sections, 

ANSWERS  AND  DEFENSES— conffwMed. 
Failure — continued. 

of  title,  499  et  seq. 

as  to  part;  mortgagor  must  release  whatever  title  acquired, 

463. 
of  whole  title ;  mortgagor  must  offer  to  rescind,  463. 
where  mortgage  on  other  land  to  secure  land  contract,  402. 

to  answer,  effect,  502. 
false  representations,  425  et  seq. 

fixtures;   on  lands  leased   for  term  of  years;  what  are,  492. 
foreclosure  barred  by  deposit  of  collateral  security,  472. 
foreclosure   of   previous   mortgage ;    title   of   claimant  under,  485. 
form  of  answer  regulated  by  Code,  382. 
fraud,  artifice,  deceit,  etc.,  40O. 

affecting   consideration   as,   420. 

as  a  defense,  420. 

as  against  creditors;  defense  of,  420. 

as  to  extent  and  boundaries  of  land  sold,  429. 

as  to  number  of  acres ;  purchase  money  mortgage,  428. 

by  agent  of  mortgagee,  421. 

by    mortgagor,    421. 

cancelation  of  mortgage  for,  423. 

concealment ;    set-off,    448-450. 

discharge  procured  by ;    innocent  purchasers,  477. 

generally,  420. 

mortgagor's  remedy  against,  423. 

of  or  upon  married  women,  426. 

participation  by  mortgagee  essential,  426. 

purchase  money  mortgage;    relief,  422,  424. 

recoupment  of  damages,  423. 

upon  mortgagor;  remedies,  421,  423. 

upon  purchaser  subject  to  mortgage,  427. 
frivolous  plea;   application  to  have  stricken  out,  532. 
highway ;  gravel  road  tax ;   set-off  of,  445. 
illegal  consideration,  406. 
illiteracy  and  negligence  of  mortgagor,  400. 
inconsistent,  401. 

indebtedness  of  mortgagee  to  mortgagor,  493. 
indemnity;  mortgage  given  for,  465. 
infancy ;  as  defense  generally,  395,  396. 

answer  by  guardian  ad  litem,  268. 

effect  of  false  statement  aa  to  age,  395. 
in  foreclosure  by  assignee  ot  mortgage,  412. 

by  assignee  of  bond  and  mortgage,  418. 

by  assignee  of  mortgage  as  collateral  security,  418.  419. 

by   fraudulent   assignee,   414. 

of  mortgage  payable  to  mortgagee  alone ;  defenses,  415. 


GENERAL    INDEX,  1887 

References  are  to  Sections, 

ANSWERS  AND  DEFENSES— coH/mM^d. 
insanity  of  mortgagor,  397. 

insolvency  of  plaintiff;  set-off  by  purchaser  from  mortgagor,  442. 
instalment;  payment  of,  468. 
interest ;   failure  of  title ;  set-off,  448. 

illegal;  set-off,  446. 

payment  of ;  giving  note  for  is  not,  469. 
issue,  when  ready  for  trial,  387. 
joint  liability;   suretyship  of  defendant,  483. 
judgment  for  debt;  not  discharge  mortgage,  477. 
legal  title  of  mortgagee ;   want  of,  is  not,  482. 
legatee  of  mortagor  may  answer,  385. 

lien  divested  by  foreclosure  of  prior  mortgage;  is  not  defense,  482. 
limitations  of  action,  474. 

payment   or  acknowledgment,  474. 

sufficiency  to  prevent  bar  of  statute,  474. 
married  women;   fraud  of  or  upon  as  defense,  420,  426. 
matters  pleadable  in  defense ;  generally.  382. 
mistake,  430  cf  seq. 

as  to  quantity  of   land ;   correction,  434. 

as  to  title ;   correction,  433. 

mutual,  430. 
mortgage  as  security  for  goods  to  be  furnished,  405. 

for   indemnity   only,   465. 

payable   on   occurrence  of  event  that   never  happened,  462. 

payable  to  mortgagee  alone,  415. 

to    secure    future    advances ;    consideration,    404. 
mortgagee  estopped  to  claim  title  in  mortgaged  premises,  485. 
mortgagor  induced  to  sign  by  false  representations  of  mortgagee,  412. 
mortgagor  or  his  grantee  may  reply  to,  382. 
necessity  to  file  cross-bill,  385. 
negligence,  400. 
negotiable  paper  secured  by  mortgage;  transfer,  416,  417. 

defenses  against,  416,  417. 
new  matter  in  avoidance ;  essential  averments,  382. 

answer  not  setting  up ;  relief,  382. 
objection  of  defect  of  parties,  how  and  by  whom  may  be  raised,  389. 

amendment,  389,  390. 
of  action  pending  on  bond,  391. 
of  attachment,  392. 
of  illegal  consideration,  406. 

not  available  to  purchaser  of  equity  of   redemption,  406. 
of  insanity  of  mortgagor,  397. 
of  want  of  execution  of  mortgage,  394. 
outstanding  claim,  495. 

payment  by  purchaser,  497. 
outstanding  title  or  incumbrance,  495-497,  501. 


1888  GENERAL    INDEX. 

References  are  to  Sections, 
ANSWERS  AND  DEFENSES— confnn^^d. 
ownership  of  fixtures,  492. 

fixtures ;  what  are,  490-492. 
paramount  title ;  cannot  be  litigated,  482. 
cannot  be  set  up,  484. 
subsequently  acquired  by  mortgagor,  488. 
parcels;  demand  of  sale  in  inverse  order  of  alienation,  494. 
order  of  foreclosure  and  sale,  493. 
protection  of  joint  incumbrancers,  493. 
Parties  Generally.     See  Parties. 

adverse  claimants;  effect  of  joining,  485. 

against  whom  mistake  may  be  corrected.  431. 

amendment,  389,  390. 

claimants  of  prior  rights,  489. 

defect  of,  389,  390. 

junior  incumbrancers,  440. 

objection  to  defect  of;  how  and  by  whom  raised,  389,  390. 

by  parties  personally  liable   for   debt,  390. 
principal  and  surety ;  defense  of  duress,  436. 
prior   incumbrancers ;    default   in   answering,   353. 
prior  lienholders;  joinder  of  and  decree  against,  487. 
set-ofif  of  debt  due  mortgagor ;  cross-bill,  440. 
subsequent   grantee ;    when   proper,   489. 
tax  title  holder ;  when  barred  by  decree,  488. 
Payment. 

after  transfer  of  note  and  mortgage  before  maturity,  468. 
application ;  balance  on  account  in  subsequent  transactions,  473. 
by  court;  according  to  equitable  rights  of  all  interested,  473. 
general  payments,  473. 

upon  mortgage  instead  of  open  account.  473. 
upon  secured  debts,  to  release  securities,  473. 
when  not  made  by  parties,  473. 
by  creditor;  failure  of  debtor  to  direct,  473. 
how  made,  473. 

implied    by    attending    circumstances,   473. 
in  discharge  of  duty  in  which  others  interested,  473. 
intention  of  parties,  473. 

not  used  as  mere  consideration  for  assignment  to  third  per- 
son, 473. 
of  book  account  indebtedness,  473. 

right  of  junior  incumbrances,  473. 
of  rents  and  profits,  468. 

amendment  of  answer  to  secure,  468. 
of  wages  earned  by  mortgagor,  473. 
once  made  must  stand,  473. 

can  not  be  transferred  to  subsequent  debt,  473. 
right  of  debtor  to  direct,  473. 
whether  upon  mortgage  or  open  account,  473. 


GENERAL    INDEX.  1889 

References  are  to  Sections, 

ANSWERS  AND  DEFENSES— co^/u/wcJ. 
Payment — coniiii  tied. 
as  a  defense,  468. 

co-tenant  can  not  interpose  when,  468. 
Alabama  rule.  468 
as  against  equitable  assignee  of  mortgage,  468. 

record  of  assignment;  notice,  468. 
at  maturity;  eflfect,  468. 
before  due;  effect,  468. 
before  maturity ;  option,  475. 

election  must  be  pleaded  and  proved,  475. 
by  assumption  of  prior  mortgage,  472. 

as  against  subsequent  assignee,  472. 
by  deposit  of  collateral  security,  472. 
by  mortgagor  after  conveyance,  474. 

after  transfer;  effect  in  keeping  debt  alive,  474. 
by  third  person;  agency;  ratification,  468. 
change  in  form  of  indebtedness  not  operate  as,  469. 
costs  and  taxes;  on  appeal;  application  of,  469. 
co-tenant  may  not  plead  when,  468. 
discharge  and  satisfaction,  477. 
by  joint  creditor ;  validity,  477. 
by  warranty  deed  by  mortgagee  after   entrv  for   installment, 

477. 
equitable;  agreement  to  accept  other  security.  477. 
not  effected  by  recovery  of  judgment  for  debt,  477. 
settlement;  judgment  on  new  note  for  balance,  477. 
to  give  priority  to  second  mortgage,  477. 

not  a  satisfaction  as  between  parties,  477. 
what  constitutes  and  how  alleged,  477. 
extension  of  time  of ;  consideration,  466,  467. 
for  purpose  of  re-mortgaging;  satisfaction,  477. 
interest;  by  purchaser  of  equity  of  redemption,  474. 
by  tenant  for  life.  474. 

effect   to   prevent   running  of    limitation   against    mortgagor's 
liability,  474. 
inability  to  find  mortgagee,  475. 
manner  of  pleading,  475. 
mortgage  kept  alive  after;  when,  468. 
must  be  a  full  liquidation  of  debt,  469. 
must  be  clearly  established,  468. 
of  condemnation  money  to  mortgagor,  471. 

foreclosure  not  barred  by,  471. 
of  costs  and  taxes,  470. 
of  debt,  468,  469. 
of  installment,  468. 
Mortg.  Vol.  II.— 119. 


1890  GENERAL    INDEX. 

References  are  to  Sections. 

ANSWERS  AND  DEFEASES— contwued. 
Payment — continued. 

of  interest;  by  life  tenant,  474. 
giving  note  for  is  not,  469. 

preserves  life  of  mortgage  against  remainderman,  474. 
prevents  statute  of  limitations  from  running,  474. 
of  outstanding  claim,  497. 
of  part,  pending  foreclosure ;  effect,  469. 
parol  evidence  of,  476. 

partial;  sufficiency'  to  prevent  bar  by  limitation.  474. 
to  stop  interest ;   subsequent  acceptance,  472. 
application  as  of  date  made,  472. 
presumption  from  circumstances,  476. 
from  failure  to  produce  bond,  476. 
from  possession  by  mortgagor  of  notes  and  mortgage,  476. 

rebuttal,  476. 
reliance  on  statement  as  to  ownership  of  mortgagee's  admin- 
istrator, 468. 
renewal  notes  is  not,  469. 

to  mortgagee's  heirs;  no  bar  to  action  by  administrator,  469. 
what  constitutes ;  requisites  and  sufficiency,  469. 
who  may  plead,  468. 

with  funds  of  third  person ;  to  purchase  mortgage  for  latter,  477. 
not  a  satisfaction,  477. 
pendency  of  action  at  law  on  notes,  391,  392. 
prayer;   affirmative  relief   must  be  demanded,  447. 
price;  excess;  counter  claim,  448. 
prior  incumbrancers ;  answer  by,  487. 
priority  of  claims,  489. 

profits ;  set-off  against  debt ;  agreement  to  apply,  447. 
purchase  money  mortgage ;  fraud ;  relief,  422,  424. 
quantity  of  land;  mutual  mistake  as  to;  correction,  434. 
questions  of  title ;  only  those  affecting  equity  of  redemption,  484. 
recovery  of  judgment  on  note  or  bond,  392. 
reference;  infant  defendants;  requisites  of  order,  502. 
reference  to  compute  amount  due ;  motion ;  notice ;  proceedings,  502 

ct  seq. 
reforming  instrument;  to  correct  mistake,  432. 
release;  fraudulent;  is  void,  478. 

by  attorney ;  of  old  mortgage  without  receiving  new,  478. 
by  payee  after  transfer  of  note  secured,  478. 
manner  of  pleading;  description  of,  478. 
mortgage  kept  alive  to  subserve  justice,  478. 
of  part  of  premises;  application  of  proceeds,  480. 
breach  of  covenant ;  damages ;  set  off,  449. 
enforcement  of  agreement,  480. 
knowledge  of  prior  conveyance  of  other  part,  479. 


GENERAL   IXDEX.  1891 

References  are  to  Sections. 

ANSWERS  AND  DEFENSES— continued. 
Release — continued. 

of  part  of  premises — continued. 

notice  of  exemption  of  other  portion,  478. 
what  constitutes;  effect,  479. 

of  prior,  by  holder  of  subsequent  mortgage,  478. 

priority  of   intervening  mortgages,  478. 

priority  over  intermediate  incumbrancer,  478. 

taking  of  new  for  old  mortgage,  478. 

without  authority;  is  void,  478. 
right  and  necessity  of  prior  incumbrancers  answering,  384. 
right  of  junior  incumbrancer  to  have  money  paid  on  account  applied 

on  mortgage,  493. 
right  of  mortgagor  to  elect  to  rescind  for  fraud  or  set  up  damages,  423. 
right  of  mortgagor  to  show  failure  of  consideration,  401. 
rights  and  equities  between  incumbrancers;  adjustment,  493. 

between  mortgagee   and   grantee   of   mortgagor,  489. 

of  grantee  of  mortgagor  to  remove  building,  489. 
Satisfaction. 

and  discharge  as,  477. 

of  judgment  on  note  or  bond,  392. 
services  rendered;  set-off,  443. 
service;  sufficiency,  388. 

defective  service,  how  and  by  whom  taken  advantage  of,  388. 
set-off,  etc.,  440  et  seq 

affirmative  relief,  if  desired,  must  be  demanded,  447. 

against  assignee  of  mortgage,  443. 

by  purchaser  from  mortgagor;  insolvency  of  plaintiff,  442. 

can  not  be  of  an  independent  claim,  444. 

election  in  which  of  several  foreclosures  to  plead  counterclaim,  445. 

future  advances ;  failure  to  make,  449. 

illegal  interest ;  usury,  446. 

in  action  on  note,  447. 

invalidity    of    foreclosure    proceedings    on    another    note    of 
same  series,  447. 

insolvency  of  plaintiff,  447. 

claim  in  favor  of  assignee  of  equity  of  redemption,  447. 

invalidity  of  mortgage;  reply,  447. 

must  be  based  upon  legal  obligation,  447. 

equitable  or  supposed  right  insufficient,  447. 

must  be  of  debt  due  and  payable,  445. 

must  be  pleaded,  450. 

must  exist  in  favor  of  defendant  and  against  plaintiff,  444. 

must  tend  to  diminish  or  defeat  recovery,  442,  444. 

not  of  unliquidated  damages,  445. 

of  contract  obligation,  441. 


1892  GENERAL    INDEX. 

References  are  to  Sections. 

ANSWERS  AND  DEFENSES— co»;m«^d. 
Set-off  etc. — continued. 

of  damages,  448,  449. 

breach  of  covenant  to  release  portions  sold  by  mortgagor,  449. 
delay  in  foreclosing;  loss  from  depreciation,  446. 

of  damages ;  excess  of  price  paid,  448. 
failure  to  make  advances,  449. 
for  failure  of  title,  448. 
for  fraud;  concealment;  448,  449. 
not  recover  interest  in  estimating  damages,  448. 

of  debt  due  at  date  of  filing  complaint,  446. 

of  debt  due  mortgagor,  440. 

of  loss  by  depreciation  in  value  caused  by  laches,  446. 

of  outstanding  claim ;  payment  by  purchaser,  497. 

of  over  payment  by  mortgagor,  440. 

of  partial  payment ;  application.  444. 

of  profits  against  debt ;  agreement  to  apply,  447. 

of  road  tax ;  when  permissible,  445. 

of  services  rendered,  443. 

prayer;  affirmative  relief  must  be  prayed  for,  447. 

requisites ;  what  proper,  444  et  seq. 

to  whom  available :  personal  liability,  442. 
special  and  general  defenses,  387. 
Subsequent. 

grantee,  489. 

when  right  of  must  be  brought  into  issue,  489. 

judgment  creditor,  386. 

New  Jersey  rule  as  to,  386. 
sufficiency  of,  394. 

in  action  on  note  and  mortgage  security,  394. 
surety  may  object  to  want  of  service  on  persons  interested,  388. 
taxes :  application  on  mortgages,  469. 

gravel  road :    set-off,  445. 

payment  of,  470. 
tax  title ;  estoppel  of  mortgagee  to  set  up  as  against  mortgagor,  485. 

in  mortgagor,  is  not  a  defense,  482. 
that  mortgage  absolute  on  face  was  given  as  collateral,  419. 
time  of  payment;  extension  of;  consideration  of,  466,  467. 

of  recording,  398. 
to  foreclosure  for  default  of  interest  installment,  466. 

extension  of  time  for  payment  of  principal  as,  466. 
trust  deed ;  validity,  485. 
undue  influence;   relief,  435. 
Usury.     See  Usury. 

as  to,  409. 

as  defense  in  favor  of  wife  to  protect  homestead,  411. 

how  alleged  and  proved,  410. 


GENERAL    INDEX.  1893 

References  are  to  Sections. 

ANSWERS  AND  DEFENSES— con/inw^d. 
Usury — con  tin  ued. 

of  mortgage  executed  in  another  state,  410. 

how  pleaded  and  proved,  410. 
proof  must  conform  to  allegations ;  variance,  410. 
set-off,  446. 
to  whom  available  as  defense,  411. 

married  woman  joining  husband  in  mortgage  cannot,  411. 
purchaser  of  land  subject  to  mortgage  cannot,  411. 
void  consideration,  as  a,  406. 
want  of  consideration  as  a,  401. 
Pennsylvania  doctrine,  401. 
who  may  answer  or  defend. 

any  one  interested  in  equity  of  redemption,  382. 

claimants  of  interest  in,  385. 
claimants  of  interest  in  equity  of  redemption,  385. 
devisee  of  mortgaged  premises,  385. 
legatee  of  mortgagor,  385. 
Louisiana  rule,  385. 
co-tenant  may  not  plead  payment  when,  468. 
devisee  of  mortgaged  property,  385. 
judgment  creditor,  subsequent,  386. 

New  Jersey  rule,  386. 
legatee  of  mortgagor,  385. 
Louisiana  rule,  385. 
New  Jersey  rule,  386. 
prior  lienor  may  answer,  when,  384. 
wife  can  not  answer  separately  in  New  Jersey,  382. 
APPEAL. 

and  new  trial,  denying  right  of  redemption,  1242. 
and  reversal,  effect  on  purchaser's  title,  721. 
appointment  of  receiver  pending,  799. 
attorney's  fees ;  allowance  of,  1006. 
case  on,  does  not,  for  redemption,  when,  1164. 
continuance  of  receivership  during  pendency  of,  826. 
Costs  on  ;  in  General.     See  Costs. 
from  allowance  of,  985-987. 
by  referee,  986. 

of  costs  not  demanded  in  complaint,  983. 
in  both  courts ;  application  on  mortgage,  469. 
who  chargeable  with,  1019. 
effect  on  title  of  purchaser,  721. 
from  final  judgment,  508. 

brings  up  order  of  reference,  interlocutory  decrees,  508. 
from  order  appointing  receiver,  779. 
confirming  sale,  661. 
fixing  fees  of  officer  making  sale.     See  costs,  981. 


1894  GENERAL    INDEX. 

References  are  to  Sections. 
APPEAL — continued. 

from   order   appointing  receiver — continued. 
of  distribution  of  surplus,  911. 
of  reference ;  neglect  to ;  effect,  897. 
of  resale;  when  appealable,  654. 
refusing  resale,  679. 

not  interfere  with  right  of  purchaser  to  have  sale  completed, 
679. 
from  refusal  to  direct  order  of  sale  of  parcels,  593. 
injunction  restraining  statutory  foreclosure  sale  to  enable  appeal  to 

be  taken,  945. 
jurisdiction  of  appellate  court  to  decide  appeal  from  order  for  dis- 
tribution  of   surplus,  911. 
mistake  in  describing  premises ;  correction,  432. 
motion  for  sale  in  inverse  order  of  alienation,  592. 

can  not  be  first  made  on,  592. 
not  lie  from  order  granting  or  decreeing  resale,  619,  643. 

nor  from  order  of  reference  to  compute  amount  due,  508. 

interlocutory  orders  and  decree,  508. 
nor  from  appointment  of  receiver,  810. 

nor  from  judgment  for  variation  from  referee's  report,  526. 
order  confirming  sale;  when  appealable,  614. 
proceedings  not  stayed;  mistake;  setting  aside  sale,  650. 
refusal  of  court  to  dismiss   foreclosure  for  small  installment  of  in- 
terest, 328. 
removal  of  receiver ;  insufficient  sureties,  784. 
reversal  on;  effect  on  purchaser's  title,  721. 
review  on,  where  verdict  of  jury  disregarded,  19. 
writ  of  error;  lis  pendens,  when  effective,  366. 
APPEARANCE. 

of  defendant  by  attorney  without  authority;   effect,  272. 

equivalent  to  personal  service,  271. 
waives  all  objections  to  regularity  of  service  of  summons,  271. 
APPLICATION  OF  PAYMENTS.     See  Payment,  Application  of. 
APPRAISEMENT  OF  LAND. 

appraiser  may  purchase  at  sale  under,  609. 
deducting  taxes  from,  540. 
effect  of  mistake  of  appraisers,  540. 
failure  to  sell  under  re-appraisement,  656. 

confirmed  when,  656.     See  Sale,  Confirmation. 
necessity  for  notice  of  appraisal,  540. 
new  appraisements  unlimited,  SAQ. 
purpose  of,  540. 
re-appraisement,  when  ordered,  656. 

confirmation  of  sale  under,  656.     See  S''k. 
right  of  constable  or  justice  of  the  peace  to  make,  540. 
when    new    appraisement    necessarj^,    540. 
when  two  lots  may  be  appraised  together,  540. 


GENERAL    INDEX.  1895 

References  are  to  Sections. 

APPURTENANCES. 

easements  used  by  mortgagor  pass  under  sherifif's  deed  as,  683. 
ASSESSMENTS. 

allowance  for  a  redemption,  1185. 

assets  of  sale,  substituted  for  property  as  regards  creditors,  690. 

assignment,  of  mortgage,  on  redemption,  1190. 

local  paid  out  of  purchase  money,  684. 

right  to  foreclose  on  default  in  payment  of,  70. 

as  affected  by  extension  of  time  of  payment  of  mortgage,  70. 
ASSIGNEE. 

for  benefit  of  creditors,  844. 

right  of  to  surplus  moneys,  844. 
foreclosure  by,  effect  of,  17. 

necessary  party  defendant  in  mortgage  foreclosure,  172. 
necessity  for  election  by  both  assignor  and  assignee  to  declare  whole 

sum  due,  63. 
of  bond,  debt  or  note,  without  mortgage,  115. 

may  foreclose,  115. 
of  equity  of  redemption,  right  to  redeem,  1082. 
Of  Land. 

accommodation,  rights  of,  843. 

right  to  surplus  moneys,  843. 
Of  Mortgage. 

assigns  as  collateral  security ;  necessary  party  defendant,  201. 

becoming  purchaser,  title  of,  685. 

defense  against,  412. 

may  foreclose,  92. 
Of  Mortgagee. 

becoming  purchaser,  title,  685. 
Of  Mortgagor. 

may  purchase  at  foreclosure,  609. 
right  of  mortgagee  to  sue  for  use  of,  92. 

right  of  second  assignee  to  elect  to  declare  whole  sum  due,  63. 
right  to  sue  in  individual  capacity,  127. 
ASSIGNMENT. 

absolute  of  mortgage,  assignee  never  a  necessary  defendant,  200. 
as  collateral  security;  claim  of  assignee  in  surplus,  883. 

fraudulent  discharge  by  assignee,  349. 

priority,   883. 
assignee  bound  by  acknowledgement  of  debt  by  mortgagor :    statute 

of  limitations,  474. 
assignee  for  the  benefit  of  creditors  may  set  up  usury  as  defense  in 

foreclosure,  411. 
assignee  takes  subject  to  equities,  415. 
assignor  cannot  foreclose,  91. 

may  be  made  defendant,  94. 
Assumption  of  Mortgage.     See  Assumption. 


1896  GENERAL   INDEX. 

References  are  to  Sections. 

ASSIGNMENT— ro«?/>n<ed. 

by  foreign  personal  representative;  assignee  may  foreclose,  123. 
by  mortgagee  in  possession,  85. 

assignee  may  retain  possession  until  mortgage  is  satisfied,  85. 
by  purchaser  of  equity  redemption,  411. 
counsel  fee  against  assignee,   1008. 
covenants  inure  to  benefit  of  assignee,  327. 
equitable,  468. 

of  rights  to  surplus ;   reference  to  ascertain  surplus,  902. 
protection  of  rights  of  assignee  against  payment  to  mortgagee; 
record ;  notice,  468. 
estoppel  of  mortgagee  as  against  assignee,  457. 
Foreclosure. 

allegation  as  to  ownership,  etc.,  338. 

as  to  assignment,  345. 
by  assignee ;  allegation  as  to  claim,  Z27. 
complaint ;  necessary  averments,  342. 
fraudulent;  foreclosure  by  assignee;  defenses,  414. 
intermediate ;  of  mortgage ;  guaranteeing  payment,  254. 
intermediate  assignor  personally  liable,  254. 

judgment  for  deficiency  against  assignee  assuming  mortgage,  743. 
knoudedge  by  mortgagee ;   estoppel,  456. 
litigation  of  rights  of  assignee,  in  foreclosure,  489. 
mistake;  correction  as  against  assignee;  foreclosure,  431. 
notice  to  assignee  of  statutory  foreclosure,  923. 
of  bid  at  foreclosure  sale ;  rights  of  assignee,  678. 
of  bond  and  mortgage,  418. 

assignee  takes  subject  to  equities;  defenses,  418. 
Of  Debt. 

assignee   may   foreclose   in   name   of   assignor,    still   holding   the 
mortgage,  115. 
not  actual  holder  of  the  mortgage;  may  foreclose,  115. 
should  be  made  a  party  to  foreclosure  by  assignor,  still  hold- 
ing the  mortgage.  115. 
assignor  still  holding  the  mortgage  should  be  made  a  party  to 

foreclosure  by  assignee,  115. 
to  purchaser  at  foreclosure  sale,  674. 

not  affected  by  sale  during  wrong  term,  674. 
without  mortgage ;  assignor  a  necessary  defendant,  199. 
of  equity  of  redemption ;  setoff  of  claim  in  favor  of  assignee,  447. 
of  judgment,  against  sheriff;  for  failure  to  return  execution,  876. 

distribution  of  surplus ;  priority,  876. 
of  lease  for  years ;  affected  by  foreclosure  sale,  683. 
of  lease  as  additional  security  as  payment,  469. 
of  mortgage;  absolute,  200. 

as  collateral ;   foreclosure ;   allegations   of  complaint,  349. 
assignee  a  necessary  party,    105. 


GENERAL   INDEX.  1897 

References  are  to  Sections. 
ASSlGNMElSiT— continued. 
of   mortgage — continued. 
as  collateral — continued. 

assignee  may  foreclose,  106. 

assignor  refusing  to  become  a  co-plaintiflf,  187. 

a  necessary  defendant,  187. 
foreclosure;   defenses,  419. 
assignee  acquires  only  assignor's  rights  and  title,  94. 

bound  by  agreement  of  mortgagor  and  mortgagee  as  to  pri- 
ority; distribution  of  surplus,  864. 
may  sue  guaranteeing  mortgagee  during  foreclosure,  without 

consent  of  court,  274. 
takes    free    from   equities   between   mortgagor   and  prior  as- 
signee, 419. 
takes  subject  to  equities  between  the  parties  to  the  mortgage, 
418,  419,  443. 
assignee  a  necessary  defendant  in  an  action  to  redeem,  200. 
assignor  a  desirable  party,  when  usury  or  fraud  is  alleged,  199. 
assignor,  having  parted  with  all  interest  therein,  not  a  necessary 

defendant,   198. 
assignor's  heirs   and   personal   representatives   not  necessary   de- 
fendants,  198. 
by  heirs  of  mortgagee ;  give  assignee  no  right  to  foreclose,  122. 
by  parol ;  assignor  a  necessary  party,  199. 

collaterally;  assignee  refusing  to  join  in  its  foreclosure  a  neces- 
sary defendant,  187. 
assignee  a  necessary  party  in  foreclosure  by  assignor,  202. 
conditionally;  assignor  a  necessary  party,  201. 
covenanting  as  to  title  and  against  defenses,  255. 

assignor  a  proper  defendant,  255. 
defense  of  payment  by  assumption  of  prior  mortgage,  472. 
foreclosure  by  assignee;  defenses,  412. 
form  of,  to  enable  assignee  to  foreclose,  93. 
from  heirs  of  mortgagee,  122. 

assignee  obtains  thereby  no  right  to  foreclose,  122. 
guaranteeing  payment;  assignor  a  necessary  defendant,  if  deficien- 
cy judgment  is  sought,  199. 
guaranteeing  payment;  assignor  a  proper  defendant,  253. 

assignor  may  be  sued  by  assignee  during  foreclosure  without 

consent  of  court,  274. 
assignor  personally  liable,  253. 
imperfect  form ;  assignor  a  necessary  party,  199. 
on  redemption,  right  to,  1035. 
passes  power  of  sale,  915. 

payable  to  mortgagee  alone;  foreclosure;  defenses,  415. 
pendente  lite;  assignee  may  continue  foreclosure,  119. 


1898  GENERAL    INDEX, 

References  are  to  Sections, 

ASSIGNMENT— co«h';n(£'d. 
of  mortgage — continueed. 

quit-claim  of  half  of  premises,  915. 

right  to  statutory  foreclosure,  915. 
right  of  assignee  to  have  payments  applied,  473. 
securing  non-negotiable  instrument,  418,  419. 

foreclosure;  defenses,  418,  419. 
set-off  against  assignee,  443. 
setting  aside  sale,  618. 

assignor  not  notified  of  time  and  place.  618. 
statutory  foreclosure  by  assignee,  916. 
to  indemnify  against  contingent  liability,  345. 
to  wife  of  mortgagor,  effect  of,  92. 
with  guaranty  of  payment,  742. 

judgment  of  deficiency  against  assignor,  742. 
without  the  bond;  assignee  cannot  foreclose,  114. 
without  the  note  or  bond,  transfers  naked  trust,  114. 

assignee  holds  mortgage  at  will  and  disposal  of  bondholder. 
114. 
of  note;  assignee  takes  free  from  defense,  408. 

and  mortgage;  before  maturity;  payment  after;  effect,  468. 

carries  collateral  security,  412. 

doctrine  that  assignee  takes   free   from  equities,  416,  417. 

exception;    maturity,   416,   417. 
foreclosure;  defense  of  illegal  consideration,  408. 
release  of  mortgage  by  payee,   when   invalid,  478. 
of  several  mortgages,  foreclosure  in  one  action,  333. 
Of   Subsequent   Incumbrances. 

assignee   necessary   defendant,    188. 

notice  to  assignee  of  statutory  foreclosure,  921,  923. 

assignee  not  bound  by  decree  unless  his  assignor  was  a  de- 
fendant, 189. 
pendente   lite;   assignee  not  necessary  defendant,    189. 
of    subsequent   judgment    creditor,    having    parted    with    all    interest, 

assignor  not  a  necessary  defendant,   186. 
of  subsequent  lien  as  collateral  security,  187. 

assignor  a  necessary  defendant,  187. 
of  subsequent  mortgage;  assignee  a  necessary  defendant,  187. 

assignor  not  a  necessary  defendant,   186. 
payment  of  interest  by  purchaser,  474. 

effect  to  prevent  bar  by  limitation   against   mortgagor's   liability, 
474. 
purchaser  at  foreclosure  sale  becomes  mortgagor  as   to  assignee   in 

possession,  683. 
record  of  need  not  be  averred,  345. 
recording  of,   416. 

will  not  invalidate  payment  to  mortgagee,  416. 


GENERAL    INDEX.  1899 

References  are  to  Sections. 

ASSIGNMENT— con/wM^rf. 

right  of  assignee  to  foreclose  in  his  own  name,  345. 
subsequent  payment  by  mortgagor,  474. 

effect  in  keeping  debt  aUve,  474. 
title  of  assignee,  342. 
to  married  woman,  of  mortgage  on  husband's  land,  does  not  discharge 

it,  134. 
transfer  of  negotiable  paper  secured  by  mortgage,  416,  417. 

foreclosure;  defenses,  416,  417. 
what  form  of  assignment  gives  assignee  the  right  to  foreclose,  93. 
when  mortgagor  need  not  be  made  a  party  in  forclosure,  390. 
will  not  effect  payment  by  mortgagor  to   mortgagee   without  notice 

thereof,  416. 
without  title  to  mortgage;  assignee  cannot  foreclose,  92. 
ASSIGNMENT  FOR  CREDITORS, 
appointment  of  receiver  after,  819. 
assignee;  takes  subject  to  equities;  is  trustee,  413. 
may  set  up  usury  as  defense  in  foreclosure,  411. 
not  a  purchaser;  takes  only  title  of  assignor,  413. 
of  person  liable  for  deficiency,  a  proper  defendant,  237. 
assignor   is   proper  party   defendant   in    foreclosure  by   his   assignee, 

411. 
by  mortgagee;   foreclosure;   defenses  against  assignee,  413. 
by  owner  of  equity  of  redemption,  620. 

right  of  assignor  to  apply  to  have  foreclosure  sale  set  aside,  620. 
creditors  not  necessary  parties  to  foreclosure  by  assignee,  413. 
ASSIGNMENT  IN  BANKRUPTCY.     See  Bankruptcy. 
ASSIGNOR. 

and  assignee  should  both  be  parties  to  foreclosure  when,  94. 
bound  by  assignee's  election  to  declare  whole  sum  due,  63. 
holding  legal  title ;  necessary  party  to  suit  by  assignee,  94. 
necessity  for  election  by  both  assignor  and  assignee  to  declare  whole 

sum  due,  63. 
of  mortgage  cannot  foreclose  when,  91, 
ASSISTANCE. 

writ  of,  when  granted,  725. 
ASSUMPSIT. 

to  recover  back  fines  paid  to  loan  associations,  515. 
where  proper   against   grantee   assuming   mortgage,   242. 
ASSUMPTION. 
Of  Mortgage. 

binding  obligation  of,  242. 

by    intermediate   purchaser   makes   him    personally    liable,    252. 

by  junior  mortgagee  does  not  make  him  personally  liable  to  prior 

mortgagee,   248. 
by    married    woman   purchasing   premises    makes    her    personally 
liable,  257. 


1900  GENERAL   INDEX. 

References  are  to  Sections, 
ASSUyiVTlO^— continued. 
Of   Mortgage — continued. 

by  oral  agreement ;  enforcement,  749. 

liability   of   purchaser   for  deficiency,   749. 
defective  title  no  defense,  while  purchaser  is  in  quiet  possession, 

245. 
evidence  that  assumption  clause  inserted  by  mistake,  746. 
governed  by  intention  of  parties,  750. 
grantor  cannot  release  from  liability,  250. 
New  York  rule,  250. 
otherwise  in  New  Jersey,  251. 
makes  purchaser  personally  liable,  when,  242,  247. 

otherwise  in   Pennsylvania,  247. 
mortgagor  becomes  his  surety  only,  243. 
not    effected    by    deduction    of    amount    of    debt    from    purchase 

price,  749. 
not  personally  liable  unless  grantor  is,  247. 
order  of  sale  on  foreclosure  rights  of  purchasers,  597  et  scq. 
presumption   from  proof  of  record  of  deed,  745. 
purchaser  cannot  avoid  payment  because  of  usury,  245. 
cannot  be  released  by  grantor,  in  New  York,  250. 

otherwise  in  New  Jersey,  251. 
estopped  to  contest  validity  of  mortgage,  745. 
liable  to  mortgagor ;   compelled  to  pay,  745. 
nor  because  of  defective  title,  while  he  is  in  quiet  possession, 

245. 
proper  party  to  foreclosure,  745. 
purchaser  subject  to  mortgage;   denial  of  assumption,  481. 
liability  for  deficiency,  743  et  seq. 

no  liability  for  deficiency  in  absence  of   agreement,  748. 
release  from  liability  by   subsequent  agreement,   747. 
remedies  to  enforce,  242. 

theories  allowing  mortgagee  the  benefit  thereof,  246. 
usury  no  defense,  245. 
what  words  and  acts  constitute,  244. 
ATTACHMENT. 

against  purchaser  failing  to  comply  with  terms  of  sale,  624. 
against  purchaser  neglecting  to  complete  purchase,  666. 
as  a  defense  to  foreclosure,  392. 
assertion  of  prior  lien  in  foreclosure,  489. 
attaching  creditor  of  premises   necessary  defendant,   183. 
lien  as  affected  by  appointment  of  receiver  in  foreclosure,  787. 
mistake;  correction  as  against  attaching  creditor;  foreclosure,  431. 
surplus ;  action  by  attaching  creditor  to  enforce  claim  in,  892. 
ATTACHMENT  CREDITORS. 

may  apply  for  surplus  moneys,  849. 


GENERAL    INDEX.  1901 

References  arc  to  Sections. 

ATTORNEY  AND   CLIENT. 

attorney   for  plaintiff   must   subscribe   summons,   259. 

power  to  purchase  at  foreclosure  sale,  609. 
Fees  of  Attorney. 

allowance  on  redemption.  1187,  1207. 
as  lien  on  mortgaged  property,   10O3. 
as  lien  upon  land  where  provided  for  in  note,  1008. 
generally.     See  Costs,  1003  et  seq. 

necessity  of  including  in  tender  after  suit  brought,  996. 
payment  on  foreclosure,  470. 
secured  by  mortgage  with  provision  for,   1003. 
will  not  be  allowed  in  first  instance  by  appellate  court,    1003. 
Lien  for  Costs.     See  Costs,  1003  et  seq. 
on  surplus  moneys,  888. 

protection  of  on   reference  to  ascertain  surplus,  902. 
of  plaintiff,  may  purchase  at  foreclosure  sale,  609.     See  Sale;  Who 

May  Purchase. 
reference  to  compute  amount  due,  507. 

proper  person  to  be  appointed  referee,  507. 
release  by  attorney ;  of  old  mortgage  without  receiving  new,  478. 
right  of  plaintiff  to  sign  lis  pendens,  372. 
right  of  plaintiff's  attorney  to  adjourn  sale,  606. 
to  foreclose  mortgage,  602. 

when  notice  to  attorney  of  subsequent  incumbrancers  not  notice 
to  client,  602. 
AUCTIONEER. 

nonobservance  of  custom  among,  not  ground  for  setting  aside  sale, 
618. 
AW.\RD  IN   CONDEMNATION   PROCEEDINGS, 
attorney's   lien   on,   684. 
belongs  to  mortgagee-purchaser,  when,  684. 
BACON  (Lord). 

ordinances.  See  Lis  Pendens,  364. 
BANKRUPTCY. 
Assignment. 

assignee ;  a  necessary  party  defendant,  when,  172,  173,  194. 
bound  by  lis  pendens  in  foreclosure,  375. 
may  foreclose,   118. 

not  interfere  with  receiver  appointed  in  foreclosure,  765. 
pendente  lite  not  necessary  party  to  foreclosure,  172. 
pending  foreclosure  is  an  incumbrancer,  375 
takes  only  title  of  assignor,  413. 

takes  subject  to  equities;  is  trustee;  not  a  purchaser,  413. 
assignee    no    longer    owning    equity    of    redemption,    not    neces* 
sary  party,   138. 
appointment  of  receiver  on  application  of  assignee,  815. 


1902  GENERAL    INDEX. 

References  are  to  Sections. 

BANKRUPTCY— co»fmH,7rf. 
Assignment — continued. 

by  mortgagor;  joinder  of  assignee  in  foreclosure  sale,  681. 
purchaser   entitled  to  rents  and  profits,  681. 
between   sale   and  confirmation,   681. 
right  to  rents   and  profits   as   between   assignee  and   mortgagee, 

795. 
sale  by  assignee;   mortgagee   estopped  by   silence,  458. 

under  decree  in,  emblements  do  not  pass  as  against  purchaser 
at   foreclosure  sale,   717. 
schedule  in,  can  not  limit  interest  and  mortgage  of   life  estate, 
683. 
concurrent  jurisdiction  of  state  and  bankruptcy  courts,  28. 
court  may  grant  creditor  jurisdiction  to  foreclose  in  state  court,  28. 
defense  against  voluntary  assignment,  413. 
foreclosure    in    state   court   barred    by    submission    to   jurisdiction    of 

bankruptcy  court,  28. 
jurisdiction  of  bankruptcy  court  in  foreclosure,  28. 
BAR.    See  Statute  of  Limitations. 
of  junior  liens  by  sale,  when,  693. 

omission  of  covenant  to  repay  not  a,  to  a  right  to  redeem,  1151. 
BARRING  EQUITY. 

Equity  of  Redemption,  See  Redemption;  Equity. 
agreement,  1036,  1037,  1038. 
abandonment,    1036. 
stipulation,  1038. 

subsequent  agreement  binding,  1038. 
surrender,  1037. 
waiver,  1036. 
BENEFICIARIES.    See  Trust. 
may  foreclose,  when,   132. 
may  purchase  at  foreclosure  sale,  609, 
not  necessary  parties,  when,  131. 
BIDDER. 

few  bidders ;  not  ground  for  setting  sale  aside,  639.     See  Sale  ;  Set- 
ting Aside. 
must  answer  for  surplus  if  he  bids  more  than  amount  due,  892. 
right  to  transfer  bid  to  another,  556. 
right  to  withdraw  bid  before  hammer  falls,  556. 
BILL  OF  REVIEW. 

mistake;   in  describing  premises,  432. 

correction,  432. 
to  redeem.    See  Redemption  ;  Action  for. 
BILLS  AND  NOTES. 

doctrine  that  assignee  takes  free  from  equities ;  exceptions,  416  ct  seq. 
before  maturity,  416  et  seq. 

non-negotiable;  transfer  subject  to  equities,  418. 
transfer ;  foreclosure  of  mortgage  to  secure ;  defenses,  416  ct  seq. 


GENERAL    INDEX.  1903 

References  are  to  Sections. 

BILLS   AND  KOT'ES— continued. 

indorsers  before  delivery  of  promissory  notes  as  co-defendants  with 

maker  on  foreclosure,  229. 
secured  by  mortgagee,  416  et  seq. 
BOARD  OF  SUPERVISORS. 

of  counties  holding  tax  liens,  proper  defendants,  196. 
BONA  FIDE  PURCHASER. 

estate  conveyed  to  by  deed  of  officer,  686. 
improvements  by,  716.     See  Improvements. 

allowance    for,   716. 
title  of  not  affected  by  usury,  when,  707. 
BONDHOLDERS.    See  Bonds. 
BOND. 

and  mortgage  for  same  debt,  912. 

order  of  enforcement,  912. 
as  controlling  allegations  of  complaint,  340. 
assignee  of  without  the  mortgage  may  foreclose.  115. 
assignment;  assignee  takes  subject  to  equities,  418. 
description  of  in  complaint  in  foreclosure,  340. 

holders     of    bonds     secured    by    subsequent     mortgage    may     inter- 
plead, 179. 
not  necessary  defendants  when,  179. 
holders  of  bonds  secured   by  deed   of  trust,   127. 

right  to  intervene  in  action  by  trustee,  127. 
negotiability;    assignment,   418. 

of   railroad,   not  entitled  to   participate  in  surplus,  850. 
official;  indemnity  mortgage,  361. 

foreclosure;  pleading,  361. 
Of  Receiver.    See  Receiver. 
used  in  connection  with  mortgage,  419. 
in  New  Jersey,  419. 
in   New  York,  419. 
in    Pennsylvania,  419. 
BOUNDARY. 

false  representations  as  to;  defense  in  foreclosure,  429. 
foreclosure:  complaint;  defective  description,  359. 
BRACKETS. 

right  of   purchaser  to  on   foreclosure  sale,  715. 
BREACH. 

of  conditions ;  allegation  of  in  complaint  to  foreclose,  360. 
of  faith,  as  ground  for  redemption,  1157. 
BUILDING  AND   LOAN   ASSOCIATIONS. 

mortgage ;   reference  to  compute  amount  due,  515. 
fines  and  dues,  515. 
BURDEN  OF  PROOF.     See  also  Evidence. 

mortgagee  must  show  that  a  conveyance  of  the  premises  to  him  was 
voluntary  and  fair,  305. 


1904  GENERAL    INDEX. 

References  are  to  Sections. 

BURDEN  OF  VROOY— continued. 

that  mortgage  was  procured  by  fraud,  427. 
to  establish   insanity  of   mortgagor,   397. 

ratification  by  infant,  395. 
to  show  amount  due  less  than  plaintiff's  claim,  514. 
partial   failure  of  consideration,  402. 
priorities;  distribution  of  surplus,  865. 
CALENDAR. 

application  for  judgment  without  placing  case  on,  525. 
default;  application  for  judgment,  532. 
necessity  for  placing  cause  on,  532. 
noticing  cause  for  trial,  387. 
reference  to  compute  amount ;  motion  for,  504. 
cause  need  not  be  placed  on,  504. 
CANCELLATION. 

of  mortgage,  for  fraud,  423. 
CARLISLE  TABLE  OF  MORTALITY.    See  Annuity. 
CAVEAT  EMPTOR. 

as  applied  to  foreclosure  sale,  686. 

doctrine   of   applied   to  sale   on   mortgage   foreclosure   in   Nebraska, 

631,  676. 
in  purchase  at  mortgage  foreclosure  sale  in  Nebraska,  676. 
CERTIFICATE  OF  SALE. 

defective,  effect  on  title,  951. 

failure  of  officer  to  comply  with  statute,  effect  on  sale,  951. 
failure  to  record,  951. 
filing  under  statutory  foreclosure,  1069. 
on  sale  by  advertisement,  951. 
defective,  effect  on  title,  951. 

failure  of  officer  to  comply  with  statute,  effect  on  sale,  951. 
failure  to  record,  951. 
sheriff's  certificate  in   Minnesota,  951. 
sheriff's    certificate    on,    in   Minnesota,   951. 
CESTUIS  QUE  TRUST.    See  Trust. 
bound  by  act  of  trustee,  when,  1170. 
may  foreclose  when,  132. 
not  necessary  parties  when,   127,  131. 
right  in  surplus  moneys,  887. 
CHANCERY.     See  Equity. 
CHANDELIERS. 

right  of  purchaser  to,  on  foreclosure  sale,  715. 
CHATTEL  MORTGAGE. 

deduction  of  value  of  goods  seized  on  sale  under  real  estate  mort- 
gage, 601. 
to  secure  same  debt,  effect  of  foreclosure,  309. 
CHECK. 

right  of  officer  selling  at  foreclosure  to  refuse,  556. 


GENERAL    INDEX.  1905 

References  are  to  Sections. 
CHILDREN. 

as  necessary  parties,  163. 
CITIES. 

holding  tax   liens,   proper  defendants,   196. 
CIVIL  LAW. 

foreclosure  under,  2. 
CLERK  OF  COURT. 
may  make  sale,  537. 

mistakes  of,  effect  on  title  of  purchaser,  683. 
CODE. 

complaint  in   foreclosure  regulated  by,  335. 
foreclosure;    practice   when    action   pending   on   note,   393. 
of  New  York ;  foreclosure,  form,  etc.,  of  complaint,  342. 
prescribes  form  of  notice  of  object  of  action,  260. 
and  of  summons,  259. 
CO-DEFENDANT. 

allegations  against  in  complaint,  341.     See  Complaint. 
COLLATERAL  ASSIGNMENT. 

of  mortgage.    See  Assignment. 
COLLATERAL   SECURITY. 

deed  intended  as;  mortgagee  a  necessary  defendant,  144. 
does   not   suspend    right   to   foreclose,   308. 

subsequent  lien  assigned  as ;  assignor  a  necessary  defendant,  187. 
COMMISSIONS. 

of  officers,  etc.,  in  foreclosure  proceedings.     See  Costs. 
COMMITTEE. 

of  lunatics,  etc.     See  Habitual  Drunkards,  Insane  Persons,  etc. 
COMMON  LAW. 

doctrine  of  mortgages,  2. 
COMMUNITY  PROPERTY. 

foreclosure  of   mortgage  on,  687. 

title  of  purchaser,  687. 
sale  of   under  mortgage  foreclosure,  628. 

not  set  aside  because  service  of  wife  made  on  husband,  628. 
title  of  purchaser,  687. 
COMPLAINT. 

allegation  as  to  election  to  declare  whole  amount  due,  360. 

allegation  that  defendants  have  or  claim  some  interest  as  admission 

of   interest  in  land,  352. 
allegations  against  mortgagor,  subsequent  purchasers  and  codefend- 
ants,  341. 
against  co-defendants,  341. 

against  grantee  assuming  payment;  personal  judgment,  356. 
against  infant  defendants ;  necessary  averments,  348. 
against  mortgagor,  341. 
against  prior  incumbrancers,  353. 
against    subsequent    purchaser,    341. 
Mortg.  Vol.  II.— 120. 


1906  GENERAL   INDEX. 

References  are  to  Sections. 
COMVLAmT— continued. 

allegations,  etc. — continued. 
as  to  claim,  337. 

assignment  of  mortgage,  345. 

collaterally,  349. 
defendant's  title  or  interest,  362. 
demand  before  suit,  360. 
as  to  property  mortgaged,  357. 
as  to  interest  of  subsequent  incumbrancers,  352,  353. 
as  to  mistake   in  name  of  mortgagee,  338. 
ownership,   etc.,   of   mortgage,  338. 
possession  of  property,  341. 
proceedings  at  law,  347. 
recording,  350. 

seizure,  possession,  etc.,  of  property,  341. 
title  and  ownership  of  mortgage,  338. 
breach  of  condition,  360. 
by  or  against  executors,  trustees,  etc.,  343. 
consideration,  amount  due,  341. 
defendant's   interest,   352. 
execution  and  delivery,  record,  etc.,  339. 
insufficiency  of,  2)27. 
mistake  in  name  of  mortgagee,  338. 
of  amount  due,  338. 

on  foreclosure  of  mortgage  securing  several  notes,  346. 
payable  on  demand,  344. 
title  and  ownership  of  mortgage,  338. 
to  bar  dower,  351. 

to  charge   personal   representatives   of   deceased  mortgagor,  354. 
to  foreclose  indemnity  mortgage,  361. 
amendment  to  correct  mistake  in  description,  432. 
averment;  as  to  payment  of  mortgage  tax,  350. 

necessity   for  substantial  compliance  with   statute,  347. 
by  assignee,  345  et  seq. 
by  assignee  of  mortgage  as  collateral;   allegations,  349. 

by  executors,  etc.,  allegation  of  appointment  and  authority,  343. 
by  personal    representative   holding    funds   in   trust,    should    spe- 
cifically  allege   plaintiff's   character,    123. 
of  indemnity  mortgage ;  averments,  361. 

of  mortgages  by  different  persons  for  same  debt;  joinder,  333. 
of   mortgage  securing   several   notes,   346. 
necessary    and    sufficient    averments,    346. 
by  executors,  etc.,  must  allege  appointment  and  authority,  343. 
cannot  be  filed    nunc   pro    tunc   so   as   to   affect    rights   acquired  by 

judgment  creditor  in  the  meantime,  190. 
defective    description    of    property,    359. 
defects  cured  by  verdict,  340. 


GENERAL    INDEX,  1907 

References  are  to  Sections, 
COMPLAl'NT— continued. 

demand   for  judgment  of  deficiency,  355. 
description  of  debt  secured,  340,  342. 

of  mortgaged  property,  357,  535. 
amendment  of,  535. 
incorrect,  effect  of,  535. 

of  note  or  bond,  340. 

of  property;  reference  to  other  instruments,  358. 
description  same  as  in  mortgage,  358. 

defective,  358. 
Dismissal. 

failure  of  plaintiff  to  establish  anything  due,  462. 

upon  payment  before  judgment,  363. 

upon   payment    into   court,   363. 
effect  of  prayer  for  excessive  relief,  354. 
formal  requisites,  335. 

on   foreclosure  by  partnership,  336. 
infant  defendants,  348. 
indemnity  mortgage,  361. 

allegations  in  complaint,  361. 
in  strict  foreclosure.    See  Strict  Foreclosure. 
insufficiency  of  allegation  as  to  claims,  337. 
joinder  of   causes   in   action,  333. 

of  matured  and  unmatured  notes,  346. 
joinder  of  mortgage  not  yet  due,  333. 

of  senior  and  junior  mortgages,  333. 
mistake;  in  description;  amendment,  432. 
mortgage   covering   several   parcels,   357. 

allegation  as  to  breach,  360. 

incorrect   description   of  premises,   357. 

stipulating  in  mortgage  for  payment  of  taxes,  337. 
setting  forth  amount  paid,  337. 

to  secure  bond  for  support  of  husband  and  wife,  360. 
must  aver  performance  of  condition  precedent,  360. 

and  set  forth  payments  indorsed  on  mortgage,  337. 
and  the  amount  of  unpaid  taxes,  354. 

and  set  up  junior  mortgage  held  by  plaintifif,  181. 
need  not  allege  acknowledgment,  339. 

nor  anticipate  defense,  338. 
need   not   be   served,    where    summons    is    accompanied    with   KOtice 

of  object  of  action,  260. 
parties ;  subsequent  grantees,  489. 

allegations  as  to  claims,  etc.,  489, 
prayer,  354. 
•     for  general  relief  as  entitling  party  to  counsel  fees,  354. 

judgment  broader  than,  354. 


1908  GENERAL   INDEX. 

References  are  to  Sections. 
COMPLAINT— fon/;';n<<'d. 

prior  incumbrancers ;  joinder,  487. 
necessary  allegations  against,  487. 

relief  under  prayer  for  general  relief,  354. 

setting   forth   payments   indorsed   on   mortgage,   337. 

several  breaches ;  proof  of  only  one  required,  360. 

should  specifically  demand  judgment  for  deficiency,  221. 
and  state  facts,  not  evidence  of  facts,  342. 

sufficiency  of  allegation  as  to  no  other  action  for  recovery  of  the  debt, 
347. 

to   foreclose  senior  mortgage,  must  set  forth  junior  mortgage  held 
by  same  mortgagee,  66. 

under  New  York  practice,  342. 
COMPOUNDING  FELONY. 

duress ;   Ohio   doctrine ;   defense  in   foreclosure,  437. 
COMPOUND  INTEREST.    See  Interest. 
COMPTROLLER.    See  St.\te  Comptroller. 
CONCURRENT  REMEDIES. 

action  at  law,   11. 

action  in  equity,  11. 

under   statute,   11. 
CONDITIONS. 

precedent ;   non-performance ;   defense,  463. 
CONFESSION  OF  JUDGMENT.     See  Judgment. 
CONFIRMATION. 

clerical  errors  as  objection  to,  661. 

departure  from  terms  of  decree  will  not  defeat,  660. 

error  in  description  in  report  of  sale  as  affecting,  661. 

failure  to  attach  copy  of  decree  to  order  of  sale  as  objection  to, 
661. 

inadequacy  of  price  alone  not  ground  for  objection  to,  661. 

irregularity  in  appraisement  no  objection  to,  661. 

irregularity    in   posting   notice   will   not    defeat,   660. 

jurisdiction,  661. 

objection  if  prior  liens  were  not  deducted  from  appraisement,  un- 
tenable, 661. 

office  of  written  objection  to,  661. 

of  referee's  report,  523. 

Of  Sale.    See  Sale,  656  et  seq. 

as    securing    irregularity    in   sale,    553. 
report  of  sale,  614. 

time  for  objection  to,  661. 

waiver  of  objection  to,  661. 
CONFLICT  OF  LAWS. 

usury;  lex  loci;  defense  in  foreclosure,  410. 
CONNECTICUT. 

foreclosure  as  a  payment  of  debt  in,   17. 


GENERAL    INDEX,  1909 

References  are  to  Sections. 

CONSIDERATION. 

abatement  on  foreclosure  for  fraud  as  to  number  of  acres,  428. 

purchase   money  mortgage,   428. 
actual  may  be  shown  on  foreclosure  of  mortgage  for  future  advances, 

404. 
allegation  of,  340,  341. 
failure  of ;  estoppel  to  set  up,  453. 
for  extension  of  time  of  payment,  403,  467. 

improvement  of  mortgaged  premises  by  mortgagor  as,  467. 

reduction  of  amount  of  prior  mortgage  as,  467. 
illegal  or  void ;  avoids  mortgage,  406. 

as  defense  to  action  on  note,  406. 
immoral,   against  public  policy,  etc.,  406. 
mortgage  entrusted  to  agent  to  procure  loan,  403. 

given  to  secure  pre-existing  debt  of  third  person,  403. 

misappropriation;  consideration,  403. 

on  wife's  property  to  secure  husband's  debt,  403. 

to  secure  confessed  judgments,  403. 
necessity  for  purchaser  parting  with  to  become  bona  fide  purchaser, 

686. 
of  agreement  to  extend  time  of  payment,  467. 
of  mortgage  as  security  for  goods  to  be  furnished,  405. 

securing  future  advances,  404. 

what  sufficient,  403. 
paid  for  note,  412. 

not  a  defense  against  assignee,   412. 
partial  failure;  as  defense  in  foreclosure,  402 
pre-existing  indebtedness,  403. 
prevention   of   foreclosure  of   second  mortgage   as  consideration   for 

extension   of  time   for  payment,  467. 
promise  to  pay  debt  of  third  person,  403. 
release  from  unfounded  claim  is  not,  403. 

want   of,   as   defense   in   foreclosure,   401.     See   Answers   and   De- 
fenses. 
withdrawal  of  prosecution  for  conspiracy,  406. 
CONSOLIDATION. 

of   actions  to  foreclose,  334. 
of  separate  foreclosures,  ZZZ,  334. 
CONSTABLES. 

may  make  appraisement,  540. 
CONSTITUTIONAL  LAW. 

statute   providing    for   mortgagor's   possession    during   period   of   re- 
demption, 1071. 

federal    doctrine,    1071. 

Kansas  doctrine,  107L 


1910  GENERAL    INDEX. 

References  are  to  Sections. 

CONTEMPT. 

by  party  in  refusing  to  deliver  possession  to  purchaser  on  foreclosure, 

724. 
refusal  of  officer  to  obey  order  of  court  to  complete  purchase  as, 
664. 
CONTRACT. 

counter-claim  arising  on;   foreclosure,  441. 
executory;  to  execute  mortgage,  874. 

priority  over  lien  of  execution;  distribution  of  surplus,  874. 
for  sale  of  land,  329. 

equitable  mortgage  to  repay  purchase  money,  329. 
illegal ;  assignment  of  mortgage  to  procure  performance  of,  412, 

defense  against  assignee,  412. 
of  purchase  subject  to  mortgage,  356. 

rescission ;  notice,  356. 
parol;  to  extend  time  of  payment;  consideration,  466,  467. 
statute  of  frauds,  331. 

equitable  lien,  329,  330. 

void  unless  in  w^riting,  331. 
to  execute  mortgage,  331. 

part  performance,  331. 
CONTRIBUTION. 

according  to  valuation,  600. 

valuation,  when  made,  600. 
in  case  of  alienated  property,  600. 
on  redemption.     See  Redemption  ;  contribution  on. 
on  sale  of  mortgaged  premises ;  parcels,  600. 

pro  rata  according  to  value,  600. 
redemption  without,  allowable  when,  1212. 
to  cost  by  prior  lienor  when,  209. 
CONVERSION. 

of  proceeds  of  chattel  mortgage  to  secure  same  debt,  309. 
CONVEYANCE. 

of  wrong  lot,  as  defense  to  redemption,  1227. 
to  mortgagee,  as  defense  to  redemption,  1226. 
COPIES. 

annexed  to  complaint  in  foreclosure,  358. 

description  of  property,  358. 
of  note  or  bond,  annexed  to  complaint,  340. 
CORPORATIONS. 

costs  against;  counsel  fee,  1007. 
foreclosure  against,  793. 

appointment  of  receiver,  793. 
foreign,  451. 

estoppel  of  mortgagor  to  deny  authority  of  agent,  451. 
owning  premises,  176. 

necessary  defendants  by  corporate  name,  176. 

stockholders  not  usually  necessary  defendants,  176. 
receiver  of  may  foreclose  mortgage,  118. 


GENERAL   INDEX.  1911 

References  are  to  Sections, 

COSTS.     See  Disbursements  ;  Fees. 

additional  allowance ;  when  granted,  983. 
against  successful  party,  982. 

when  allowed,  982. 
allowance  of,  983. 

although  not  demanded  in  complaint,  983. 

discretionary,  982,  985. 

not  appealable,  985. 

on  ofifer  to  confess  judgment,  982. 

where  action  brought  before  right  accrues,  39. 
Appeal. 

application  on  mortgage  of  costs  of  both  courts,  469. 

exceptions,  etc.,  to  allowance,  987. 

from  order  fixing  referee's  fees,  981. 

not  from  allowance  of,  985. 
are  as  a  general  rule  statutory,  983. 
attorney's  fees,  1003,  et  seq.  1207. 

against  whom  enforceable,  1008. 

subsequent  purchasers,  etc.,  1008. 

allegations  and  averments  as  to,  1009. 

allowance  generally,  1003. 

allowance  of  discretionary,  1006. 
not  appealable,  1006. 

in  Kentucky  and  Michigan,  1004. 
stipulation  for;  usury,  1005. 

lien  on  surplus  moneys,  888. 

on  statutory  foreclosure,  1012-1014. 

reasons  for  disallowing,  1010. 

statutory  or  contract  obligation,  1007. 
contribution  to  by  prior  lienor,  when,  209. 
counsel  fees.    See  Attorney,  Fees  of ;  Fees,  1003  et  seq, 
disbursements.     See  Disbursements. 
dismissal,  without  costs,  upon  payment  into  court,  363. 
equity  practice  as  to  allowance,  etc.,  982. 
excessive  demand  for  in  complaint,  995. 

effect  of,  995. 

remedy  on  motion  to  retax,  628. 

taxing  not  ground  for  setting  aside  sale,  628. 
exoneration  from,  by  tender,  344. 
fees  of  officer  conducting  sale,  979,  980. 

are  statutory,  980. 

in  general.  979. 
guardian  ad  litem,  998. 

allowance  to,  998. 
in  case  of  death  of  guarantor  of  mortgage,  984. 
in  discretion  of  court,  985. 
in  distributing  surplus  moneys,  1017  et  seq. 


1912  GENERAL    INDEX. 

,  References  are  to  Sections. 

COSTS — continued. 

in  equitable  actions  to  foreclose,  983. 

in  favor  of  prior  encumbrancer  made  a  party,  989. 

in  general.    See  Fees,  982. 

in  strict  foreclosure,  986. 

interest  on,  1023. 

judgment;  confession  of,  982. 

allowance  of  costs  in  case  of,  982. 
may  be  awarded  against  one  who  unreasonably  defends,  993. 
mortgage  a  lien  for,  either  upon  land  or  surplus,  1002. 
notice  of  no  personal  claim,  994. 
not  imposed  in  absence  of  statutory  authority,  983. 
of  receivership,  628,  828. 

cannot  be  taxed  against  mortgaged  premises  where  receiver  wrong- 
fully appointed,  628. 

compensation  of  receiver,  828. 
of  resale,  665. 

against  purchaser  not  completing  purchase,  665. 
of  suit,  in  redemption,  1161,  1184. 

omitted  judgment  creditor,  redeeming,  need  not  pay,  184. 
on  appointment  of  receiver,  999. 
on  default,  997. 
on  redemption.  1011,  1161,   1184,  1243.     See  Redemption. 

attorney's  fee,  1207. 
on  reference,  986. 

discretion  of  referee,  986. 
on  resale,  1000. 
on  reversal  of  judgment,  983. 

costs  to  abide  event,  983. 
on  separate  foreclosures  of  several  mortgages  on  same  premises,  333. 
payment,  1002. 

on  foreclosure,  470. 

out  of  what  fund,  1002. 
personal  liability,  1001. 

who  liable,  1001. 
persons  unnecessarily  made  defendants,  352. 
prevailing  party  entitled  to,  982. 

although  recovering  only  part  of  demand,  982. 
prior  lienors  entitled  to  be  dismissed  with,  209. 
regulated  by  statutes  of  various  states,  985. 
remedy,  628. 
statutory  foreclosure,  1014. 

expenses,  etc.,  of  trustee,  1013. 

power  of  sale,  1012. 

taxation  of  costs,  1014  et  seq. 
code  allowances,  1014  et  seq. 
successful  party  must  apply  for,  983. 


GENERAL    INDEX.  191.^ 

References  are  to  Sections, 
COSTS — continued. 

successful  party,  prima  facie  entitled  to,  982. 
surplus  proceedings,  1017. 
disbursements,   1020. 
distribution,  etc.,  1014  et  seq. 
who  chargeable  with,  1019. 
who  entitled  to,  1018. 
taxation  of,  1014  et  seq. 

foreclosure  by  advertisement,  1014  et  seq. 
mode  of,  1016. 

not  ground  for  setting  aside  sale,  628. 
remedy  on,  motion  to  retax,  628. 
who  may  require,  1016. 
tender,  996. 

after  action  brought,  996. 
effect  of,  996. 
to  defendants,  when  disallowed,  993. 
to  mortgagee,  when  disallowed,  992. 
to  persons  unnecessarily  made  defendants,  352. 
to  prior  incumbrancer  made  a  party,  989. 
under  New  York  code,  986. 
who  entitled  to,  988. 

all  defendants,  when,  988. 
guardian  ad  litem,  998. 
in  general,  988. 
mortgagee,  988. 

on  two  foreclosures  against  same  property,  991. 
party  to  action,  988. 
prior  mortgagee,  989. 
subsequent  incumbrancer,  990. 
COUNSEL  FEES.    See  Fees. 

COUNTER-CLAIM.    See  Set-off  and  Counter-claim. 
COUNTIES. 

holding  tax  liens ;  proper  defendants,   196. 
COUNTY  TREASURER. 

custodian  of  money  paid  into  court,  363. 
COURTS. 
Federal. 

bankruptcy  court  has  jurisdiction  in  foreclosure  against  bankrupt, 

28. 
bankruptcy  court  may  grant  creditor  jurisdiction  to  foreclose  in 

state  court,  28. 
commencement  of  foreclosure  in  Federal  court  bars  action  in  state 

court.  28. 
concurrent  jurisdiction  of   state  and  bankruptcy  courts,  28. 
foreclosure  in  state  court  barred  by  submission  to  jurisdiction  of 
bankruptcy  court,  28. 


1914  GENERAL    INDEX. 

References  are  to  Sections. 
COURTS — continued. 
Federal — continued. 
jurisdiction,  737. 

jurisdiction  in  foreclosure  action  by  trustee,  28. 
right  to  enter  deficiency  judgment  in  foreclosure,  220,  737. 
rule  in,  as  to  deficiency;  judgments,  220. 
jurisdiction  and  venue,  18. 
permission  to  maintain  action,  11. 
power  of  court  to  appoint  receiver,  766. 
power  of  court  to  relieve  from  forfeiture  where  it  is  responsible  for 

default,  64. 
Of  Appeals. 

jurisdiction  to  decide  appeals  from  order  for  distribution  of  sur- 
plus, 911. 
Of  Equity.    See  Equity. 
venue,  18.  See  Venue. 
COVENANT. 

breach  of  as  basis  of  counter-claim,  447. 

for  maturity  of  entire  debt  upon  default  in  payment  of  installment, 

327. 
for  quiet  and  peaceable  possession,  464. 

breach  of  as  defense,  464. 
independent  or  collateral,  464. 

breach ;   defense,  464. 
to  pay  existing  incumbrance ;  breach ;  defense,  463. 
to  release  portions  of  premises  sold  by  mortgagor,  449. 

breach  ;  damages ;  set-off,  449. 
to  repay,  omission  of  no  bar  to  right  to  redeem,  1151. 
COVERTURE.    See  Answers  and  Defenses. 
CREDITORS. 

equity  will  not  lend  its  aid  to  enforce  mortgage  to  defraud,  296. 

Fraud  of.    See  Fraudulent  Conveyance. 

of  mortgagor,  may  answer,  383. 

of  mortgagor,  may  purchase  at  foreclosure  sale,  609. 

right  of  judgment  creditor  to  impeach  purchase  by  mortgagee  at  own 

sale,  320. 
subsequent.       See     Junior     Encumbrances  ;     Subsequent     Encum- 
brances. 
transferred  from  lands  to  proceeds  on  sale,  690. 
CROPS.    See  Emblements. 
CROSS-BILL  OR  CROSS-COMPLAINT. 

by  junior  mortgagee  to  make  himself  party  to  foreclosure  by  prior 

mortgagee,  385. 
by  prior  lienor  on  mortgage  foreclosure,  211. 
in  bill  to  redeem,  decree  on,  1235. 

necessity  for  to  entitle  junior  incumbrancer  to  surplus,  385. 
right  of  prior  incumbrancer  to  file.  384 


GENERAL    INDEX.  1915 

References  are  to  Sections. 

CROSS-BILL  OR  CROSS-COMPLAINT— co«irin/^(/. 

setting  up  mistake  or  fraud  in  execution  of  note  and  mortgage,  423. 
setting  up  title  under  tax  sale,  484. 
CURTESY. 

four  requisites,  160. 

marriage ;  actual  seizin  of  the  wife ;  issue,  and  death  of  wife,  160. 
in  New  York,  the  wife  must  die  intestate,  160. 
DAMAGES. 

assessed    for   street    improvement   belong   to   purchasing   mortgagee, 

when,  684. 
for  breach  of  covenant  conveying  land  to  mortgagor,  recovery  by  pur- 
chaser, 683. 
for  wrongful  injunction  of  sale  under  statutory  foreclosure,  946. 
foreclosure ;  counter-claim  for,  448,  449. 

fraud  as  to  extent  or  boundaries  of  land  sold,  429. 
recoupment,  429. 
fraud ;  recoupment  on  foreclosure,  423.  ■• 

upon  mortgagor ;  additional  relief,  421. 
purchase  money  mortgage;  fraud,  counterclaim,  424. 
unliquidated  ;  mortgage  to  secure,  914. 
not  subject  if  set  off,  445. 
statutory  foreclosure,  914. 
DATE. 

of  posting  notice;  sufficiency  of  affidavit  as  to,  552. 
DE  NON  ALIENANDO. 

clause  in  mortgage,  617. 
DEATH  OF  MORTGAGOR. 

effect  on  foreclosure  of  mortgage,  276,  280,  740. 
effect  on  judgment  for  deficiency,  740. 
effect  on  lien  of  mortgage,  740. 

presentation  of  mortgage  to  administrator,  740. 
effect  on  power  of  sale  in  mortgage,  280,  324,  740. 
effect  on  right  to  foreclose  mortgage,  280,  740. 
foreclosure  against  heirs,  276. 

presentation  of  mortgage  to  administrator  for  acceptance,  740. 
revokes  power  of  sale  in  mortgage,  740. 
DEBENTURES. 

holders  of  necessary  parties  defendant,  146. 
DEBT. 

assignee  of  without  mortgage  may  foreclose,  115. 
satisfaction  of ;  effect  of  sale  after,  944. 
tender  of ;  as  preventing  foreclosure,  468. 
as  releasing  lien  of  mortgage,  468. 
DECEDENT'S  ESTATE.    See  Executors  and  Administblators. 
DECEIT.     See  Fraud. 
DECREE. 

and  order.    See  Judgment. 


1916  GENERAL    INDEX. 

References  are  to  Sections. 

DECREE — continued. 

by  default,  may  be  opened  when,  1217. 
contingent  for  deficiency,  735,  739,  754. 

power  of  court  of  chancery  to  decree,  737. 
departure  from  terms  of  will  not  defeat  confirmation,  660. 
facts  to  be  recited  in  where  defense  of  usury  sustained,  409. 
fixing  equities  cuts  off  right  of  redemption  when,  1030. 
for  deficiency,  735. 

contingent,  735. 

power  of  court  of  chancery  to  decree,  737. 
for  sale  on  credit,  improper  when,  556. 
foreclosing  mortgage,  effect  on  lis  pendens,  381. 
Of  Foreclosure. 

of  mortgage  and  sale  of  premises,  14,  526,  533. 
by  default,  1217. 

deficiency  judgment,  526.    See  Deficiency,  Judgment  for. 

description  of  property  in,  535. 
misdescription,  effect,  535. 

effect  of  on  lis  pendens,  381. 

form  and  contents  of,  534. 

generally,  533. 

Illinois  rule,  13. 

misdescription  of  property  in,  535. 

regularly  enrolled  cannot  be  altered,  1217. 

where  the  whole  amount  of  debt  due,  508. 

where  there  are  two  or  more  debts,  566. 
Of  Trust  Deed. 

on  land  crossed  by  railroad,  711. 

railroad  right  of  way  should  not  be  exempted,  711. 
on  redemption.    See  Redemption. 
Order. 

on  default,  form  of,  508. 

staying  sale,  564.    See  Sale. 

regularly  enrolled  cannot  be  altered,  1217. 

when  whole  amount  of  debt  due,  508. 
presumption  that  officer  followed  direction  in,  576. 
separate  decree  for  each  parcel  unnecessary,  567. 
void  as  to  purchaser  of  equity  of  redemption  not  made  party,  146. 
DEED. 

absolute  in  form,  a  mortgage  when,  7,  1029,  1047. 

defeasance  clause,  1029,  1047. 

foreclosure  of,  7. 
assumption  of  mortgage.     See  Assumption. 
by  master  after  report  filed  void,  637. 
by  mortgagor  and  mortgagee  of  part  of  premises,  140. 

inoperative  as  a  release,  140. 


GENERAL   INDEX.  1917 

References  are  to  Sections, 
DEED — continued. 

by  officer  making  sale,  682. 

after  report  filed  invalid,  637. 

correction  of  error  in  description  in  mortgage,  710. 

statement  of  former  owner  as  to  boundary,  710. 
delivery,  682,  708. 
estate  conveyed  by,  683. 

adverse  to  estate  by  conveyance  of  mortgagor,  712. 

appeal  and  reversal,  effect  on,  721. 

assessments  paid  out  of  purchase  price,  not,  684. 

award  of  damages  for  street  improvement  passes  with,  when, 

684. 
bankruptcy,  schedule  in  cannot  limit  to  life  estate,  683. 
cannot  be  limited  to  life  estate  by  schedule  in  bankruptcy,  683. 
channel  furnishing  water  passes  when,  683. 
defects,  effect  upon,  692. 
Effect  on. 

of  appeal  and  reversal,  721. 

of  defects,  692. 

of  error,  688. 

of  fraud,  688. 

of  mistake  of  clerk  of  court,  683. 
emblements  pass,  717. 
fee  in  equity,  683. 
Freed  from. 

all  liens  acquired  pending  suit,  693. 

claim  of  general  creditors,  690. 

junior  liens,  when,  693. 

licenses,  when,  694. 

parol  trust,  698. 

resultant  trust,  when,  694. 

secret  trust,  when,  694. 
improvements  pass  under,  716. 
in  community  property,  687. 
in  desert  lands,  683. 

assignee  of  mortgage,  683. 
in  emblements,  689. 
in  ice,  689. 

in  mortgaged  succession,  696. 
in  New  Jersey,  683. 

on  mortgage  to  sinking  fund  commissions,  683. 
in  tract  with  easement  of  well,  683. 
in  water  in   stream,  683. 
irregularities,  effect  on,  692. 
mortgage  interest  only,  683. 
not  affected  by  usury,  when,  707. 
notice  affects,  when,  683. 


1918  GENERAL   INDEX. 

References  are  to  Sections. 
DEED — continued. 

by  officer  making  sale — continued. 
estate  conve}'ed  by — continued. 

personalty  affixed  to  freehold  does  not  pass,  when,  716. 

pipe  furnishing  water  passes,  683. 

rents  and  profits  pass,  702,  718.     See  Rents  and  Profits. 

accounting  for,  720. 
right  to  possession,  699. 

schedule  in  bankruptcy  cannot  limit  to  life  estate,  683. 
statute  of  limitations,  rights  under,  683. 
subject  to  prior  liens,  700. 
takes  nothing  not  in  mortgage,  683. 
timber  conveyed  by,  706. 
title  of  mortgagor,  683. 
title  of  wife  joining  in  mortgage,  683. 
title  relates  back  to  execution  of  mortgage,  700,  712. 
to  assignee  of  mortgagee  purchasing,  685. 
to  bona  fide  purchaser,  686. 
under  invalid  mortgage,  691. 
under  invalid  sale,  701. 
under  riparian  mortgage,  703. 
undivided  interest  of  tenant  in  common,  683. 
estate  under,  relates  back  to  date  of  execution  of  mortgage,  700, 

712. 
execution  and  delivery,  682,  708. 
force  and  effect  of,  682. 
"more  or  less,"  omission  from,  effect,  695. 
covenants ;  breach ;  defect  of  title,  448. 

foreclosure;  counter-claim  for  damages,  449. 
deposit  of  title  deeds;  equitable  mortgage,  330. 
execution  and  delivery,  708. 
failure  of  title,  422. 

relief  from  payment  of  purchase  money,  422. 
filing  under  statutes  regulating  foreclosures,  1069. 
foreclosure;  subsequent  purchaser  made  party;  allegation  as  to  record, 

fraud,  etc.,  350. 
In  Escrow. 

mortgagor  conveying  by,  a  necessary  party  to  foreclosure,  145. 
in  foreclosure.     See  By  Officer  this  title, 
mistake  in;  relief  on  foreclosure,  430  et  seq. 
not  necessary  on  statutory  foreclosure  by  advertisement,  961. 
Of  Mortgaged  Premises. 

assumption  clause  in  unusual  place,  244. 

grantee  not  bound  for  mortgage  debt,  when,  244. 
need  not  be  signed  by  grantee  assuming  mortgage,  244. 


GENERAL    INDEX.  1919 

References  are  to  Sections. 

DEED — continued. 
Of  Trust. 

executed  prior  to  mortgage,  485. 

validity  not  litigated  on  foreclosure;  ejectment  proper  action, 
485. 

rights  of  beneficiary  in  surplus  moneys,  887. 

sale  under,  558. 
On  Foreclosure  Sale.     See  By  Officer  this  title;  Sale. 
on  statutory  foreclosure,  by  advertisement,  not  necessary,  961. 
Purchase  Subject  to  Mortgage.    See  Assumption. 
rights  of  vendees  in  surplus  moneys,  887. 
strict  foreclosure  by  grantee,  973. 
To  Purchaser  at  Foreclosure  Sale,  961.     See  Sale. 
warranty  by  mortgagee,  after  entry  for  installment,  477. 

discharge  of  mortgage  by,  477. 
DEFAULT. 

after  pleading,  to  appear  at  trial,  507. 

reference  to  compute  amount  due,  507. 
against  prior  incumbrancers,  353. 
decree  conclusive,  357. 

although  premises  incorrectly  described  in  mortgage,  357. 
in  answering,  by  one  of  the  defendants,  510. 

by  prior  incumbrancer,  353. 

contents  of  order  of  reference  in  case  of,  510. 

order  of  reference  to  ascertain  amount  due,  502. 
in  interest ;  effect  of  payment  after  default,  43. 
in  payment  of  insurance,  59. 
in  payment  of  taxes,  58. 

effect  of  payment  after  action  brought,  58. 

misinformation  as  to  payment  as  affecting  right  to  foreclose,  SSL 
judgment  on  application,  after,  531. 

after  report,  526. 

extent  of  relief,  527. 

against    defendants    claiming   interest,    502. 
conclusiveness,   502. 

application   for  judgment;   after  reference,  524  et  seq. 
what  must  be  shown,  524. 

costs    on,    997. 

opening,   528,    1217. 

subsequent   pleadings   and    proceedings,    528. 

time ;   notice,  532. 
merely  technical  will  not  be  enforced,  SO. 
mortgagee  taking  possession  on,  redemption  after,   1160. 
necessity   for  breach   of   all  conditions,  43. 
recovery  in  case  of,  335. 

limited  to  cause  stated  in  complaint,  335. 
relief  by  court  where  it  was  responsible  for  default,  64. 


1920  GENERAL    INDEX. 

References  are  to  Sections. 
DEFAULT — continued. 

sale  not  decreed  if  mortgage  not  set  out  in  complaint,  339. 
technical  default  in  payment  of  taxes;  equitable  relief,  58. 
DEFECTIVE   FORECLOSURE. 

on  sale  by  advertisement,  952. 
DEFECTS. 

effect  on  title  on  foreclosure,  692. 
DEFECTS   OF  TITLE. 

existing  prior  to  mortgage,  669. 
unknown  to  purchaser  at  time  of  sale,  668. 
DEFENSES. 

To  Foreclosure.     See  Answers  and  Defenses. 
DEFENDANTS. 
See  Parties. 
DEFICIENCY. 

action  on  bond  for,  17. 

against  mortgagee  in  possession,  741. 

not  liable  on,  741. 
against  third  person,  741. 
assuming  mortgage,   741. 
not  assuming   mortgage,   741. 
ascertainment  of,  735. 

amount,  735. 
decree  of  sale  should  direct  report  of,  734. 
demand  in  complaint  for  judgment  for,  357. 
determining,   753. 

how  determined,  753. 
enforcing  by  suit  at  law,  736. 
execution  for,  614. 

confirmation    of    sale    not    prerequisite,    614,    615. 
specified  in  report  of  sale,  614. 
time  and  mode  of  issuing,  756. 

when  confirmation  of  referee's  report  not  prerequisite,  738. 
when  issued,  735. 

guarantor  of  mortgage  debt  liable  for,  229. 
how  determined,  753. 
husband,    signing    bond    secured    by    mortgage    on    wife's    separate 

estate,   liable   for,  228. 
installment  not  yet  due,  judgment  for,  752. 
judgment  for,  526. 

against  administrator  of  mortgagor,  871. 

action    to    have    declared    lien    on    surplus    from    foreclosure 
sale  of  other  lands,  871. 
against,  any  person  liable  as  guarantor  or  surety,  743. 

assignor  of  mortgage,  with  guaranty  of  payment,  742. 
mortgagee,  when,  201. 


GENERAL    INDEX,  1921 

References  are  to  Sections. 

DEFICIENCY— co;!//«Mcrf. 
judgment  for — continued. 
against — continued. 
mortgagor,    738. 

administrator  of,  871. 

action    to    have    declared    lien    on    surplus    arising 
from    sale    under    foreclosure    of    other    lands, 
871. 
Connecticut   statute,   738. 
Michigan  statute,  738. 
Mississippi  code,  738. 
Nebraska  code,  738. 
New  York  rule,  738. 
United    States   statutes,    738. 
Washington    code,    738. 
personal   representatives,  7ZZ. 
Mississippi  doctrine,  72i2i. 
purchaser  subject  to  or  assuming  mortgage,  356,  743. 
mortgaged   premises  primary   fund,   744. 
not  liable  in  absence  of  agreement,  748. 
subsequent   liability,   744. 
third  person,  when,  741. 

part  purchaser  of   land   where  not  obligated,  743. 
person  assuming  mortgage,  743. 
amount   rendered   for,   7ZZ,   753. 

determining,  753. 
assumption  of  mortgage  by  oral  contract,  749. 
defenses  available  to  grantee,  746. 
enforcement,    749. 

intention  of  parties  governs  liability,   750. 
release  from  liability  by  subsequent  agreement,  747. 
when  grantee  not  liable,  746. 
can  be  rendered  only   for  part  of   debt   due,  225. 
can  not  be  rendered  against  one  not  appearing  nor  served,  224. 
common  law  and  chancery  practice  opposed  to,  219. 
Connecticut  rule,  722. 
contingent   decree,   735,   754. 
death  of  mortgagor,  effect  on,  740. 
definition    of,    225. 
demand  for,  in  complaint,  355. 
determining  amount  of,  753. 
docketing,   when,  225,  754. 

upon  confirmation  of  officer's  report  stating  amount,  225. 
•   enforcing,  by  suit  at  law,  736. 
entry ;   docketing ;   time   of,   754. 
for    installment    not    yet    due,    752. 
further  or  other  judgment  not  necessary,  when,  733. 
Mortg.  Vol.  II.— 121. 


1922  GENERAL    INDEX. 

References  are  to  Sections. 
'D¥.¥lCl¥.^CY— continued. 
judgment  for — continued. 

general  principles.  220,  7Z2). 

statutes  modifying  common  law,  220. 
in  case  of   death   of  mortgagor,   740. 
in  case  of   service  of  process  by  publication,  739. 
manner  of  determining  amount,  225. 
may    be    rendered    /;;    personam,    although    remedy   on    the    debt 

is  barred,  84. 
miscellaneous  matters,  757. 

necessity  of  previous  confirmation  of  report  of  sale,  754. 
no  proceedings  upon  until  amount  ascertained  by  referee,  738. 
no,  where  process  served  by  publication,  739. 
not   allowed  in   strict   foreclosure,  964. 
not  entered   with   decree   of   foreclosure,   753. 

Wisconsin  rule,  753. 
not  for  installments  not  yet  due,  752. 
not  granted   unless   demanded,  335,  355. 
not  rendered  until  amount  ascertained,  754. 
not  rendered  where  non-resident  defendant  not  served,  224,  751. 
object  of  statute  authorizing,  7ZZ. 
parties  liable  not  relieved  by  delay  in  foreclosing,  741. 
personal  service  of  process  necessary  to  entitled  to,  72)9. 
power  of  chancery  to  decree,  72i7. 
prerequisites   to  entrj'  of,  615. 
rendered  only  when  demanded,  355. 
rule  in  federal  courts,  220. 

should   be   specifically  demanded    in   complaint,   221. 
should  .specify  order  of  liability,  253. 
statutory  authority  essential,  7i2. 
suit  at  law  to  enforce.  736. 
when  granted,  72>Z,  738. 

personal  service  of   process  requisite,  739. 
when  lien  attaches,  755. 
when  may  be  docketed,  754. 

land  lying  in  two  states,  754. 
where  no  indebtedness  exists,  effect,  7ZZ. 
married   woman   executing  mortgage   liable   for,   to   extent   of    value 
of  mortgaged  lands,  233. 
signing  bond  or  note  secured  by  mortgage,  liable  for,  230. 

general  rule,  230. 

New  York,  Act  of  1884,  231. 
order  of  liability  for,  should  be  fixed  by  decree,  223. 
parties  originally  liable,  227,  228. 

all  persons  signing  bond  or  note  secured  by  the  mortgage,  228. 

deceased ;  liability  of  their  estates,  234. 

general  principles,  226. 

mortgagor  agreeing  to  pay  debt,  227. 


GENERAL    INDEX.  1923 

References  are  to  Sections. 
D^YlCmKCX— continued. 
proceedings  to  collect,  7ZZ. 

purely  statutory,  7Z2). 
purchaser  at  judicial  sale,  made  subject  to  mortgage,  not  liable  for, 

239. 
purchaser  of  premises  assuming  mortgage,  liable  for,  242. 
not   liable,  239. 

otherwise  in  New  Jersey,  240. 
the   rule   in   New  York,  241. 
referee  to  sell  should  be  required  by  decree  to  report  amount,  222. 
report  of;  by  officer  conducting  sale,  734. 
confirmation  of   report,  734. 
New  York  rule,  734. 
report  of  sale  should  state  amount,  615,  734. 
suit  at  law  for,  736. 

under   New  York  code ;   what  comprises,   735. 
remedy  to  recover,  735. 
DEFINITION. 

equity  of  redemption,  1025. 
foreclosure,  1. 
foreign,    125. 

judgment  for  deficiency,  225. 
necessary  parties  defendant,   135,  178. 
necessary  party,   135. 
redemption,    1024. 
right  of  foreclosure,  2)7. 
right  of  redemption,  1025. 
surplus  moneys,  831. 
DELAWARE. 

methods  of   foreclosure  in,  3. 
DELIVERY. 

allegation  of  in  complaint,  339. 
of  possession  to  purchaser,  722. 
DEMAND. 

by  agent;  denial  of  authority;  sufficiency  thereof,  462. 
in   case   of   stipulation   for,   49. 
necessity  for  before  foreclosure,  49. 

effect  of  mortgagor's  abandonment  of  office,  49. 
not  necessary  when,  49. 

to  election  that  debt  become  due,  62.     See  Foreclosure,  Election. 
to  foreclosure,  49. 
of  payment,  by  mortgagee,  of  mortgage  payable  to  mortgagee  alone, 
415. 
prerequisite  to  foreclosure  by  personal  representatives,  415. 
previous  to   foreclosure,  necessity  of   alleging,  344,  360. 
what  a  sufficient  for  foreclosure,  49. 


1924  GENERAL    INDEX, 

References  are  to  Sections. 

DEMURRER. 

not  liable  for  failure  of  complaint  to  set  forth  acknowledgment,  339. 
to  complaint  in  foreclosure  of  mortgage  securing  several  notes,  346. 

not  praying  for  a  sale  of  the  premises,  355. 
to  relief  demanded  on  foreclosure,  354. 
DESCRIPTION. 

defective  in  complaint  to  foreclose,  359. 
defective  in  mortgage  and  complaint;  effect  of,  358. 
defective;    w^hen   will  be   disregarded,   359. 
indefinite,  451. 

estoppel  of  mortgagor  to  complain  of,  451. 
of  premises,  in  complaint  on  foreclosure,  357. 
mistake ;  correction,  431,  432. 
DESERT   LANDS. 

assignee  of  mortgage  on,  683. 
DETERMINING   DEFICIENCY.     See   Deficiency. 
DEVISE.    See  Wills. 
DEVISEE. 

cannot  foreclose  when,  122. 

of  mortgaged  property  may  answer  and  defend,  385. 
residuary  legatees  and  devisees  as  necessary  parties   to   foreclosure, 
164. 
DISAFFIRMANCE. 

of  mortgage  by  infant,  395. 
DISBURSEMENTS.    See  Costs;  Fees. 
allowance  of,  1015,  1185. 
auctioneer's    fees,    1015. 
on  redemption,   1185. 
expenses  for  search,  1021. 

Lawyer's    Title    Insurance    Company's    search    not   allowed    for, 

1021. 
unofficial    search    not   allowed    for,    1021. 
in   redemption  proceedings,    1185. 
in  surplus  proceedings,  1020. 
on  sale  under  trust  deed,  1020. 
interest  on,   1022. 

tax  lien  paid  by  mortgagee  not  allowed  when,  1020. 
DISCHARGE. 

and  satisfaction  as  defense  to  foreclosure,  477.     See  Answers  and 

Defenses. 
by  husband  of  mortgage  to  himself  and  wife,  really  belonging  to  her, 

cannot    prevent    her    from    foreclosing,    134. 
In  Bankruptcy.    See  Bankruptcy. 
of  record,  by  collateral  assignee,  when  void,  349. 
what    constitutes,    477. 

how  alleged  and  proved,  477. 


GENERAL   INDEX.  1925 

References  are  to  Sections. 

DISCONTINUANCE. 

of  action  on  note,  by  commencement  of  action  to  foreclose,  392. 
of  pending  suit   for  debt,  915. 

prerequisite  to   foreclosure  by  advertisement,  915. 
DISCRETION  OF  COURT. 

in  setting  aside  sale,  619.    See  Sale;  Setting  Aside. 
DISMISSAL. 

delay  as  ground  for,  1215. 

effect  of,    1215. 

error  to  direct  when,  1215. 

of  action  to  foreclose  for  non-payment  of  small  installment  of  interest, 

328. 
of  bill  to  redeem,  1215. 

of  foreclosure  upon  payment  of  money  into  court,  363. 
DISTRIBUTEES. 

Foreclosure  by.     See  Executors  and  Administrators. 
DOWER.    See  also  Husband  and  Wife;  Widow. 
bar  by  foreclosure,  355. 

necessary  averments,  351. 
when  not  barred  by,  486. 
bar  to  statutory  foreclosure;  service  of  notice,  921,  924, 
cannot  be  extinguished  unless  wife  is  a  party,  155. 
costs    in   surplus   proceedings   on   allowance   of,    1018. 
extinguished,  where  wife,  not  made  a  party,  dies  during  foreclosure, 

155. 
inchoate  right  of,   155,  573,  880. 
entitled  to  when,  573. 
in  surplus,  845,  879. 
is  inalienable,  155. 
in  surplus,  573,  879  et  seq. 

annuity ;    Carlisle   table,   881. 
investment  of  interest,  881. 
priority,  879  et  scq. 
not  extinguished  where  mortgage  executed  by  husband  alone,  IS. 
of  widow  admeasured  in  premises,  mortgaged  by  husband  alone,  decree 

of  foreclosure,  156. 
outstanding  right  of,  668. 

will  relieve  purchaser  at  foreclosure  sale  from  completing  pur- 
chase, 668. 
right  subsequently  accrued,  486. 

widow  as  defendant,  486. 
sale  of  undivided  two  thirds  of  property  to  protect  inchoate  right  of, 

578. 
surplus;  action  to  enforce  claim  in,  892. 

priority  of  judgment  liens,  873. 
where  abolished  by  statute,  wife  not  a  necessary  defendant,  155. 
where  wife  is  omitted  as  a  defendant,  may  be  computed  and  paid  be- 
fore husband's  death,  156. 


1926  GENERAL    INDEX. 

References  are  to  Sections. 

DRUNKENNESS. 

committee  of  drunkard  as  defendant,  195. 

defendant ;  service  of  summons  on,  when  not  necessary,  270. 

owner  of  premises,  heirs,  devisees,  or  legatees  necessary  defendants, 

174. 
statutory  foreclosure  of  mortgage  upon  property  of  habitual  drunkard, 

914. 
subsequent  incumbrancer  a  proper  defendant,  195. 
committee  a  necessary  defendant,  195. 
DURESS. 

as  a  personal  defense,  436. 

as  defense  in  foreclosure,  408.     See  Answers  and  Defenses. 

necessity  of  mortgagee  participating  in  to  invalidate  mortgage,  436. 

not  available  to  purchaser  of  equity  of  redemption,  436. 

of  person,  439. 

defense  in  foreclosure ;  relief,  439. 
Ohio  doctrine,  437. 

over  married  woman ;  defense  in  foreclosure ;  relief,  438,  439. 
threats ;  relief  against  in  foreclosure,  436. 
undue  influence;  relief  in  foreclosure,  435,  439. 
DWELLING-HOUSE. 

removed  from  premises,  not  subject  to  mortgage,  302. 
EASEMENT. 

extinguishment  of  by  foreclosure  sale  and  deed  to  purchaser,  712. 
in  mortgaged  premises,  147. 

purchaser  a  necessary  defendant,  147. 
used  by  mortgagor,  683. 

pass  under  sheriff's  deed  as  appurtenance,  683. 
EFFECT  OF  FORECLOSURE.    See  Foreclosure,  effect  of. 
as  payment,  17. 
on  title  of  sale  under,  14. 
EJECTMENT. 

against  mortgagor ;  defense  on  foreclosure,  496. 

cannot  be  maintained  by  a  wife  or  widow  omitted  as  a  defendant,  156. 

eviction  of  mortgagor,  498. 

as  defense  in  foreclosure,  498. 
what  constitutes,  498. 
may  be  maintained  against  tenant,  when,  177. 

by  owner  of  premises,  omitted  as  a  defendant,  148. 
not  lie  in  favor  of  purchaser  until  time  for  redemption  expired,  713. 
of  mortgagor ;  in  strict  foreclosure,  973. 
purchaser  at  foreclosure  sale  may  maintain,  699. 
to  put  purchaser  at  foreclosure  sale  into  possession,  see  also  Summary 

Proceedings. 
trust  deed;  validity;  proper  action  to  determine,  485. 


GENERAL   INDEX.  1927 

References  are  to  Sections. 

ELECTION. 

notice  of,  62. 

before  commencement  of  foreclosure  action,  62. 

sufficiency,  62. 

where  necessary,  62. 
of  mortgagee  that  debt  become  due,  60,  61. 

effect  of  payment  of  taxes  after  default,  61. 

necessity  for  affirmative  act,  60. 

revocation,  60,  61. 

waiver,  61. 
to  declare  whole  sum  due ;  who  may  have,  60  et  seq. 

effect  of  election  by  assignee  of  trust  deed,  63. 

effect  of  extension  of  time  of  payment  of  mortgage,  70. 

effect  of  failure  to  elect  after  default  in  first  installment,  61. 

effect  of  tender  of  overdue  interest  before  election,  61. 

necessity  for  election  by  assignor  and  assignee,  63. 

power  of  court  to  relieve  mortgagor,  64. 

right  of  second  assignee  to  elect,  63. 

sufficiency  of  notice  by  agent,  62. 

waiver  of  right  to  notice  of  election,  62. 
to  foreclose  on  default  in  payment  of  installment.  327,  328. 
waiver  of  election,  61. 
EMBEZZLEMENT. 

by  receiver  of  rents  and  profits.  See  Receiver. 

of  proceeds  of  mortgage  by  agent  to  procure  loan.  401. 

no  defense  to  foreclosure.  401. 
EMBLEMENTS. 

pass  to  purchaser  on  foreclosure,  689,  717. 

upon  premises  at  expiration  of  lease  belong  to  tenant  not  made  a  de- 
fendant,   177. 
EMINENT  DOMAIN. 

compensation;  payment  to  mortgagor.  471. 

foreclosure  not  barred,  471. 
order  of  alienation  in  case  of;  sale  on  fnrcclnsure.  595. 
ENTRY  AND  POSSESSION. 

by  mortgagee,  effect  on  right  to  foreclose.  38. 
constructive  entry  ;  how  made,  4. 
foreclosure  by,  4. 
nature  of  the  remedj-,  3. 
open  and  visible  entry  not  now  required.  4. 
when  title  becomes  absolute,  4. 
EQUITABLE  CONVERSION. 

as  affecting  character  of  surplus.  840. 
EQUITABLE  INTEREST. 

owner  of   may  foreclose.    107. 
EQUITABLE  MORTGAGE. 

by  deposit  of  title  deeds.  330. 


1928  GENERAL   INDEX. 

References  are  to  Sections. 

EQUITABLE  MORTGAGE— continued. 
for  purchase  money,  329. 
omission  of  statutory  formalities,  331. 
statute  of  frauds,  part  performance,  331. 
EQUITABLE  REMEDY. 

origin  and  growth  of,  2. 
EQUITABLE  RULE. 

evasion  of  prohibited,  1045. 
EQUITABLE  SUBROGATION.    See  Subrogation. 
EQUITY. 

actions  in.    See  Action. 

consolidation,  334. 
Adjustment  of  Equities. 

between  incumbrancers,  493. 
in  distribution  of  surplus,  855. 
cancelation  of  mortgage  for  fraud,  423. 

chancery  rules  and  ordinances,  Bacon's,  364.     See  Lis  Pendens. 
does  not  favor  doctrine  of  merger,  1050.     See  Merger. 
has  jurisdiction  in  action  to  redeem,  1214. 
looks  to  substantial  object  of  conveyance,  1029. 
mortgage  taken  with  notice  of,  586. 

effect  on  rights  of  purchaser,  586. 
mortgagor  seeking  to  redeem  must  do,  1192. 

will  not  lend  its  aid  to  enforce  mortgage  to  defraud  creditors,  296. 
EQUITY,  COURTS  OF. 

enforcing  statutes  of  limitation  in,  73. 
fraud  upon  mortgagor,  421,  422. 

setting  aside  mortgage  for,  421,  422. 
jurisdiction  of,  18. 

cannot  be  deprived  of  jurisdiction  by  agreement  of  parties.  21. 
effect  of  commencement  in  federal  court  on  jurisdiction  of  state 

court,  28. 
federal  courts,  28. 
state  courts,  21. 

circuit  courts  of  Missouri,  22. 
county  courts,  21. 

no  power  to  reform  mortgage,  21. 
New  York  supreme  court,  21. 
to  decree  judgment  for  deficiency,  737. 
to  decree  possession  to  purchaser  on  foreclosure,  722. 
to  enforce  contract  to  execute  mortgage,  331. 
transitory  action,  36. 

where  property  situated  in  two  states,  33. 
where  the  parties  reside  in  another  state,  35. 
cannot  render  judgment  for  deficiency,  35. 
mistakes ;  relief  against,  430  et  seq. 
no  relief  in,  against  purchase  money  mortgage,  except  for  fraud,  422. 


GENERAL    INDEX.  1929 

References  arc  to  Sections. 

EQUITY  OF  REDEMPTION.    See  Redemption',  Equity  of. 
ERROR. 

effect  on  title  of  purchaser  on  foreclosure.  688. 
in  description  in  mortgage,  710. 

correction  of  in  deed,  710. 
in  refusing  to  dismiss  foreclosure,  328. 

in  report  of  sale  or  order  of  ratification  may  be  corrected,  661. 
ERROR,  WRIT  OF. 

lis  pendens,  when  effective,  366. 
ESCROW.    See  Deed. 
ESTATE. 

conveyed  by  referee's  deed,  683.     See  Deed  ;  by  Officer. 
in  land,  equity  of  redemption  is,  1039.     See  Redemption  ;  Equity  of. 
ESTOPPEL. 

against  married  woman,  454. 

purchaser  subject  to  mortgage,  459  et  seq. 
purchaser  subject  to  usurious  mortgage,  461. 
allowable  as  defense  in  foreclosure,  451  ct  scq.  See  Foreclosure. 
bars  redemption,  when,  1246. 
by  agreement  not  to  enforce  mortgage,  69. 
negligence,  or  acquiescence  in  sale,  648. 

setting  aside  sale,  648. 
silence  at  public  sale,  458. 
In  Pais. 

against  married  woman,  454. 
against  mortgagor,  451. 

after  acquired  title;   inures  to  mortgagee's  benefit,  451. 

although  by  public  grant  or  patent,  451. 
to  complain  of  indefinite  description,  451. 
to  contest  validity  of  other  notes  of  same  series.  451. 
to  deny  authority  of  mortgagee  as  agent  of  foreign  corpora- 
tion, 451. 
to  deny  that  mortgage  covers  entire  track  intended,  451. 
to  deny  validity  of  title,  451,  452. 
to  dispute  recitals  in  mortgage,  451. 

to  set  up  partnership,  and  want  of  authority  of  mortgagee, 
451. 
by  silence  at  sale,  458. 
extinguishes  mortgage,  when,  1053,  1061. 
what  amounts  to,  1061. 
invoked  to  change  title,  when,  136. 
necessity  of  fraudulent  intent,  457. 

of  executors,  etc.,  to  deny  appointment  and  authority,  343. 
of  husband  to  set  up  usury  to  protect  homestead  against  foreclosure^. 
411. 


1930  GENERAL    INDEX. 

References  arc  to  Sections. 
ESIOV'PYA^— continued. 
Of  Mortgagee. 

against  purchasers  at  public  sale ;  by  silence  as  to  his  lien,  458. 

agreement  to  release  part  of  premises,  456. 

as  against  purchasers  from  mortgagor,  456,  457. 

as  against  third  person,  by  failure  to  give  notice  of  his  rights,  458. 

fraud  or  concealment,  457. 

in  possession ;  to  set  up  tax  title  against  mortgagor,  485. 

knowledge  of  conveyance  by  mortgagor,  456. 

to  claim  title  as  against  mortgagor,  485. 
Of  Mortgagor. 

after  acquired  title ;  inures  to  mortgagee's  benefit,  455. 

as  against  purchaser  of  mortgage,  453. 

by  acts,  declarations  and  agreements,  453. 

by  warranty  of  title ;   subsequently  acquired  title  inures  to  mort- 
gagee, 488,  501. 

to  claim  property  to  have  been  held  by  him  in  trust,  452. 

to  deny  his  authority  as  executor,  452. 

to  deny  title  in  himself,  452,  482,  501. 

to  plead  outstanding  title  in  third  person,  452,  482-484,  501. 

to  set  up  defect  of  title,  452,  482. 

to  set  up  failure  of  consideration,  453. 

to  set  up  fraud  of  mortgagee,  453. 

to  set  up  misappropriation  of  money  by  mortgagee,  453. 

to  set  up  usury,  453. 
of  purchaser  subject  to  mortgage,  460. 

to  contest  validity,  745. 

to  deny  his  assumption  of  debt,  453. 
statements  by  representatives  of  deceased  mortgagor  as,  453. 
to  charge  title,  when,  136. 

when  purchaser  not  assuming  incumbrance  not  estopped  from  ques- 
tioning validity  of  lien,  460. 
EVICTION. 

as  defense ;  what  constitutes,  498. 

against  assignee  of  mortgage,  412. 
EVIDENCE.     See  also  Presumption. 

admissions  of  mortgagee  to  prove  consideration,  402. 

burden  of  proof  to  show  amount  due.  less  than  plaintiflf's  claim,  514. 

to  show  priorities ;  distribution  of  surplus,  865. 
competency  on  reference  to  compute  amount  due,  509,  513. 
judicial  notice  of  county  in  which  lands  situated,  359. 
may  rebut  presumption  of  paj-ment  arising  from  mortgagor's  adverse 

possession.  75. 
mortgage  to  defraud  creditors,   inadmissible  when,  401. 
of  insanity  of  mortgagor,  397. 
of  parol  agreement  as  to  time  of  payment,  68. 

parol  extension  of  time,  71. 


GENERAL    INDEX.  1931 

References  arc  to  Sections, 

EVIDENCE— continued. 

of  partial  failure  of  consideration.  402. 
of  payment ;  circumstantial,  476. 

presumption,  rebuttal,  476. 
of  record  of  deed ;  presumption  of  assumption  of  mortgage,  745. 
of  usury,  must  conform  to  allegations  ;  variance,  410. 
on  action  to  redeem,  1216. 
on  reference  to  ascertain  surplus,  905.     See  Testimony. 

signing  and  filing,  905. 
on  reference  to  compute  amount  due,  513. 

witness  need  not  sign  testimony,  513. 
Parol. 

of  payment,  476. 

to  prove  terms  of   sale  omitted  from  proofs   in   statutory   fore- 
closure, 954. 

to  show  that  clar.se  of  assumption  of  mortgagee  was  inserted  by 
mistake,  746. 

to  show  fraud  or  mistake,  423. 

to  show  grantee  did  not  assume  mortgage,  481. 

to  show  mortgage  for  indemnity  only,  465. 
under  answer,  of  agreement  to  apply  profits  on  mortgage  debt ;  set  off, 

447. 
what  competent  on  application  for  final  judgment,  525. 
EXCEPTIONS. 

generally.     See  Appeal. 
to  referee's  report,  523. 
EXECUTION. 

and  delivery  of  deed  by  officer  making  sale,  708.  See  Deed;  by  Officer. 
exemption  of  homestead.    See  Homestead. 
failure  to  return,  876. 

judgment  against  sheriff,  876. 

distribution  of  surplus  ;  priority,  876. 
for  deficiency.     See  Deficiency. 
in  si^t  for  debt;  return  unsatisfied,  915. 

prerequisite  to  statutory  foreclosure,  915. 
lien  of,  on  surplus ;  priority,  874. 
Of   Mortgage. 

allegation  of,  in  complaint,  339. 

denial  of  as  a  defense,  394.    See  Answers  and  Defenses. 
sale  of  land  under,  cuts  off  judgment  creditor's  right  to  redeem,  1087. 

See  Redemption. 
sale  of  mortgaged  premises  under  several,  595. 

order   of    alienation    on    foreclosure    sale,   595. 
sale  of   mortgagor's    interest ;    effect   as   to  parties,    143. 
surplus  ;  distribution  ;  priority,  874. 

upon  foreclosure  decree ;  levy  not  necessary  before  sale,  539. 
upon  judgment  for  mortgage  debt;  sale  under,  683. 

what  title  passed  and  equities  cut  off,  683. 


1932  GENERAL    INDEX. 

References  arc  to  Sections. 

EXECUTORS  AND  ADMINISTRATORS, 
appointment  of  receiver  against.  796. 

assignor  of  mortgage  to  heir,  as  share  of  estate,  not  a  necessary  de- 
fendant,  198. 
averments  of  complaint  necessary  to  charge  personal  representatives, 

354. 
defendants  in  foreclosure,  165,  343. 

estoppel  to  deny  appointment  and  authority,  343. 
not  necessary  generally,  165. 
disability  to  foreclose  attaches  only  to  person,  not  to  subject  matter, 

126. 
distributees   of    mortgage   allowed   to    foreclose,   after   administration 

closed,  122. 
estate  in  hands  of ;  surplus ;  distribution  in  surrogate's  court,  890. 
estoppel  of  mortgagor  to  deny  his  authority,  452. 

executing  mortgage  to  pay  debts  of  estate,  a  desirable  defendant,  175. 
foreclosure  against,  343. 
authority  to,  415. 
complaint,  allegations  as  to  authority,  343. 

averment  to  charge  with  deficiency,  354. 
surplus;  preference  of  judgment  lien  over  legatee's  claims,  873. 
Foreclosure  by. 

allegation  of  appointment  and  authority  to  foreclose,  343. 
mortgage  payable  to  deceased  only,  415. 
Foreign. 

disability  to  foreclose  attaches  only  to  person,  not  to  subject  mat- 
ter, 126. 
foreclosing   mortgage,  objection  must  be  made   by  demurrer   or 

answer,  126. 
may  assign  bond  and  mortgage  for  foreclosure,  126. 
may  foreclose  by  advertisement  under  power  of  sale,  126. 
may  not  usually  foreclose,  125. 

must  not  obtain  letters  within  the  state,  in  order  to  foreclose,  125. 
payment  of  mortgage  debt  to,  cancels  lien,  126. 
holding  funds  in  a  fiduciary  capacity,  to  whom  a  mortgage  is  executed, 

may  foreclose,  123. 
holding    funds    in    trust,    foreclosing    mortgage ;     character    should 
clearly   appear  in  bond   and   mortgage,   123. 
character  should  be  specifically  alleged  in  pleadings,  123. 
investing  estate  funds  in  his  individual  name,  only  his  personal  repre- 
sentative can  foreclose,  123. 
judgment  for  deficiency  against,  354,  892. 

action  by  mortgagee  to  enforce  claim  for  deficiency,  892. 
action  to  have  declared  lien  on  surplus  arising  from  foreclosure 
sale  of  other  lands,  871. 
letters  irregularly  granted ;  setting  aside  sale  for,  618. 
may  revive  foreclosure,   120. 


GENERAL   INDEX.  1933 

References  arc  to  Sections. 

EXECUTORS  AND  ADMINISTRATORS— con//;iH^<f. 
mistake;  correction  of  as  against,  431. 

foreclosure,    431. 
mortgage  executed  by  decedent ;   foreclosure,  343. 

allegations   by    and    against    executor,    etc.,    343. 
objection    to    foreign    personal    representative    as    plaintif?^,    must    be 

made  by  answer  or  demurrer,  126. 
of  assignor  of  mortgage,  and  all  interest  therein,  not  necessary  de- 
fendants,  198. 
of  deceased  joint  mortgagees,  must  be  made  parties  to  foreclosure, 

99. 
of    deceased    mortgagee,    may    foreclose    mortgage    securing    annu- 
ity,  if  the  condition  was  broken  during  decedent's  life- 
time,  120. 
may  purchase  at   foreclosure  sale,  609. 
of  deceased  mortgagor,  921. 

right  to  be  served  with  notice  of  sale,  921. 
of  deceased  owner  of  mortgage,  may  foreclose,  120. 
of  deceased  vendor  may  foreclose  land  contract,  121. 
of  executors    or    administrators    to    whom    mortgages    are    executed 

as  such,  may  not  foreclose,  124. 
of  executor  who  invests  estate  funds  in  his  individual   name,  alone 

can  foreclose,   123. 
of  guarantor  of  mortgage ;  costs  against,  984. 
of  joint  mortgagors,  not  usually  necessary  parties,   142. 
of  mortgagee ;  allowed  to  foreclose  mortgage  specifically  bequeathed, 
122. 
may  foreclose,   when  a  bequest  is  to  be  paid   from  proceeds  of 

of    mortgage,    122. 
owner  in  severalty,  must  be  a  party  in  foreclosure,  100. 
of  mortgagor ;  necessary  defendants  in  foreclosure  by  advertisement 
in  New  York,  162. 
no  longer  owner  of  equity  in  redemption,  not  necessary,  138. 
of  owner  of  equity  of  redemption  a  necessary  defendant  in  foreclosure 
by  advertisement,  in  New  York,  165. 
usually  not  a  necessary  defendant,  165. 
always  proper,  165. 
of  persons  liable  for  deficiency,  proper  defendants,  234. 
of  persons  subsequently  liable  for  deficiency,  proper  defendants,  258. 
of   subsequent   incumbrancer,   necessary    defendants,    193. 

should    be    appointed    and    made    defendant    before    foreclosure, 
193. 
of    trustee    allowed    to    foreclose,    120. 

of  wife  dying  during  foreclosure,  not  necessary  defendants,  155. 
payment;  in  reliance  upon  statements  of  mortgagee's  administrator  as 
to  ownership  of  mortgage ;  defense  of,  468. 
to  mortgagee's  heirs,  469. 

as  defense  against  administrator,  469. 


1934  GENERAL    INDEX. 

References  are  to  Sections. 

EXECUTORS  AND  ADMINISTRATORS— confmnrd. 

should  be  made  defendants,  in   foreclosure  by   legatee  of   mortgage, 

122. 
statutory  foreclosure  by,  916. 

parties;   service,  921. 
surplus;   distribution;   estate  held  by  executors,  etc.,  860. 

arising  on  estate  in   hands  of ;  character  of ;   whether  realty   or 

personally,  839  ct  seq. 
payment  into  surrogate's  court,  837. 
to  whom  a  mortgage  is  executed,  may  foreclose,   123. 
their  personal  representatives  may  not  foreclose,  124. 
their   successors   may   foreclose,    124. 
EXPIRATION  OF  ESTATE. 

prevents   foreclosure,  38. 
EXTENSION  OF  TIME. 

as  a  defense,  466.    See  Answers  and  Defenses. 
by  parol,  of  time  to  pay  interest,  328. 
of  payment,  466. 

defense  on  foreclosure ;  consideration,  466,  467. 
to  redeem.    See  Redemption. 
FAILURE  OF  CONSIDERATION, 
as  a  defense  to  foreclosure,  402. 
FAITH. 

breach  of  as  ground  for  redemption,  1157. 
FALSE  REPRESENTATIONS.     See  Fraud. 
FEDERAL  COURTS.     See  Courts. 
FEES. 

Attorney  and  Councelors.    See  Attorney's  Fees. 
auctioneer's  fees.     1015. 
counsel's    fees,    1003. 

allow^ance  matter  of  contract,  1007. 
California  doctrine,   1003. 
enforcement  on  purchaser,  1008. 
Illinois  rule,  1003. 

must  be  paid  to  stop  foreclosure,   1003. 
notice  of  sale  not  included  in,  when,  1003. 
statutory  fees  allowed  when,  1007. 
in  foreclosure  proceedings.     See  Costs. 

of  officer  making  sale,  979.     See  Costs  and  Disbursements. 
FELONY. 

compounding ;  duress,  436. 
Ohio  doctrine,  437. 
FINDINGS. 

of  court,  omission  to  set  out  note  or  bond  secured  by,  340. 
FIRE. 

destruction  of  building  by,   releases  purchaser  when,  664. 


GENERAL    INDEX,  1935 

References  are  to  Sections. 

FIXTURES. 

a  part  of  the  realty  when.  302,  714. 
House. 

moved  to  adjoining  lot  does  not  destroy  lien  when,  302. 
on  leasehold,  removed,  following  propertj',  303. 
on  land  leased  for  a  term  of  years,  492. 

removal,   following  property,  303. 

what  are,  answer  of  ownership,  490  et  seq. 
pass  to  purchaser  on  foreclosure  sale,  302,  714. 

exceptions  to  the  rule,  715. 
removed  from  premises  not  subjected  to  mortgage,  302. 

lien  not  destroyed  by  removal  to  adjoining  lot  when,  302. 
right    of    tenant    to    remove    not    prejudiced    by    foreclosure    before 

end  of  term,  177. 
right  to  upon  statutory  foreclosure,  950. 
what  are;  defense  as  to  ownership,  490  ct  seq. 
FORECLOSURE. 

accelerated  maturity  by  breach,  326,  360. 
accrument  of   right   upon   breach  of  conditions,  360. 

on  default  in  payment  of  installments,  326  et  seq. 
action  at  law  on  notes ;  w  hen  a  bar  to,  391,  392 
After  Debt  Barred. 

effect  of  statutory  prohibition,  80. 

when  allowed,  80. 

when  not  allowed,  80. 
against  infant ;  purchase  money  mortgage,  396. 

ratification  and  disaffirmance,  395. 
against  one  of  separate  parcels  covered  by  mortgage,  308. 

when  bars  foreclosure  against  other  parcel,  308. 
against  purchaser  subject  to  mortgage;  denial  of  assumption,  481. 
answers  and  defenses  in.    See  Answers  and  Defenses. 
as  terminating  right  to  redeem,  1026. 
as  to  part  of  single  track,  308. 

barred  against  mortgagor's  grantee,  only  when  barred  against  mort- 
gagor, 82. 
bars  action  at  law  during  it  pendency,  273. 
by  advertisement.    See  Statutory  Foreclosure. 
by  assignee,  for  default  in  payment  of  installment,  327. 
by  bondholders  when  trustee  refuses  to  act,  328. 

by    foreign    specific    legatee    of    bond    and    mortgage    does    not    pro- 
duce perfect  record  title,  126. 
by  partnership,  336. 

form   of   complaint,   336. 
Complaint. 

amendment  of,  535. 

misdescription  of  property  in,  535. 


1936  GENERAL    INDEX, 

References  are  to  Sections. 

FORECLOSURE— co;r/!«M^d. 
consolidation  of  actions,  334. 

South  Carolina  rule,  334. 
death  of  mortgagor,  efifect  on  right  of,  44. 
Decree  of.     See   Decree  and  Order. 

effect  on  lis  pendens,  381. 

facts  to  be  recited  where  defense  of  usury  sustained,  409. 

upon  prayer  in  cross-bill  of  mortgagee,  9. 
defeated  by  agreement  of  parties  when,  2i7. 
definition,   1. 
Demand. 

cannot  be  split,  2)2i7. 

previous  not  necessary,  49. 

stipulation  for,  49. 

what  a  sufficient,  49. 
Demurrer.    See  Demurrer. 
effect  of,  1,  13. 

as  payment  of  debt,  17. 

by  assignee,   17. 

on  lien  of  junior  lienor,  16. 

on  persons  not  made  parties,  IS. 

on  rights  of  previous  grantee,  14. 

on  title,   14. 

subsequent  incumbrancers,  16. 
election  to  foreclose  for  over-due  installment,  60,  328. 

demand  not  necessary,  62. 

notice  of,  62. 

Dakota  rule,  62. 
Pennsylvania    rule,   62. 
Texas   rule,   62. 
service  of,  62. 

waiver  of  right,  what  is,  61. 

who  may  exercise  option,  63. 
Estoppel.    See  Estoppel. 

by  agreement  not  to  enforce  mortgage,  69. 
expiration  of  estate  prevents,  38. 
extension  of  time  of  payment  defeats,  70. 
failure  to  pay  installment  of  interest,  56,  326,  328. 

refusal  to  accept,  43,  57. 

stay  of  foreclosure  on,  328. 

what  not  a  payment,  57. 

when    suit   cannot   be    maintained    against   one    agreeing  to  pay. 
56. 
failure  to  pay  installment  of  principal,  327. 
failure  to  pay  taxes,  58. 
future  advances ;  mortgage  securing,  404. 

validity ;  consideration,  404. 


GENERAL    INDEX.  1937 

References  are  to  Sections, 
"FORECLOSURE— continued. 
history  of,   2. 
indemnity  mortgage,  67. 

default,  67. 
interest  clause  entitling  to  on  breach,  43. 

California  doctrine,  43. 

Michigan  doctrine,  56. 

New  York  doctrine,  50. 

part  payment,  effect  of,  43. 

payment  after  suit  brought,   effect,  43. 

Pennsylvania  rule,  64. 

receivership  does  not  affect  right  of,  43. 

waiver  of  right  of  forfeiture,  43. 
Issue  Joined. 

evidence  on,  529. 
Declarations. 

inadmissible  when,  529. 
Pennsylvania  rule,  529. 

in  action  by  administrator,  529. 
joinder  of  actions,  iiZ. 
judgment  on.     See  Judgment. 

application  for,  what  to  be  shown,  524. 

on  note  or  bond,  when  bars,  392. 
junior  mortgagee  cannot  compel  by  senior  lien  holder,  332. 
lien  of  decree,  13. 
limitation   of   action,   72. 

California  rule,  72,  79. 

Illinois  doctrine,  79. 

New  York  doctrine,  79. 

North   Carolina,   72. 

South  Carolina  code,  72. 

presumption  of  payment  from  mortgagor's  possession,  75. 

when  limitation  begins  to  run,  78. 

when  right  barred,  79. 

when  right  not  barred,  80. 
lis  pendens.    See  Lis  Pendens. 
matters  pertaining  to  trials.     See  Trial. 
methods  of,  3. 

by  action  in  equity,  3,  7.    See  Action  in  Equity. 

by  advertisement,  3,  6,  912  et  seq. 

by  entry  and  possession,  3,  4.    See  Entry  and  Possession. 

by  equitable  action,  3,  7. 

by  statutory  foreclosure,  3,  6,  912  et  seq.     See  Statutory  Fore- 
closure. 

by  strict  foreclosure,  3,  5.     See  Strict  Foreclosure. 

Mortg.  Vol.  II.— 122. 


1938  GENERAL   INDEX. 

References  are  to  Sections. 
FORECLOSURE— con/n;!/crf. 
methods  of — continued. 

concurrent  remedies,  11. 
action  on  bond,  11. 
equitable  action,  7. 

in  Delaware,  3. 

in  Montana,  3. 

providing   for   in  mortgage,  3. 
mode  of  noticing  for  and  bringing  to  trial,  387. 
mortgage  covering  real  and  personal  property,  309. 
mortgages   with   six  months   clause,  292. 
mortgages   wrongfully   discharged,   293. 
not  barred  by  prior  mortgage  for  same  debt,  308. 
notice  to  tenants  to  quit  not  necessary,  46. 
object  of,  1. 
of  equitable  mortgage;  by  deposit  of  title  deeds,  330. 

to  repay  purchase  money,  329. 
of  mortgage  payable  to  mortgagee  alone,  415. 

representatives  cannot   foreclose   if   demand   not   made  by   mort- 
gagee, 415. 
of    mortgage    securing    future   advances,   404. 

actual  consideration  may  be  shown,  404. 
of   overdue   installment,   will    not  bar   right  to   foreclose   for   subse- 
quent installments,  327. 
of  separate  mortgages  on  real  and  personal  property,  309. 
of  several  mortgages  in  same  action,  ZZZ. 
of  single  mortgage  to  secure  two  debts,  joinder,  ZiZ. 
on  default  in  payment  of  assessments,  taxes  or  water  rents,  70. 

as  affected  by  extension  of  time  of  payment  of  mortgage,  70. 
Order  on.    See  Decree  and  Order. 
other  liens,  285,  309,  2>2,Z. 

right  of  plaintiff  to  have  established,  333. 
P.\rties  to.     See  Parties. 
payable  in  installments,  54. 
Pendency.     See  Lis  Pendens. 
person  interested  not  made  party,  effect,  1056. 
Pleadings  in.    See  Answers  and  Defenses;  Complaint;  Demurrer; 

Reply,  etc. 
Power  in  AIortgage. 

duties  of  person  executing,  316. 

not  personal  to  mortgagee,  313. 

notice  of  sale,  315. 

possession  not  necessary  to  execution  of,  317. 

sale  must  be   in   strict   accordance  with,  318. 

void  under  statute,  311. 

when  sale  to  be  made,  314. 
notice    of    sale,    315. 


GENERAL    INDEX.  1939 

References  are  to  Sections, 

FORECLOSURE— coH^niMfd. 

Power  in  Mortgage — continued. 
who  may  execute,  312. 

foreign  administrator  when,  313. 
where  coupled  with  an  interest,  313. 

what   is,  313. 
where  a  naked  power,  312. 
previous   demand   not   necessary,  49. 
proceedings  on  issue  joined,  529. 
Referee's  Report. 

exceptions   to,   523. 
filing  and  confirming,   523. 
new  hearing,  523. 
result  of,  13. 

right  not  suspended  by  mortgage  given  as  collateral,  308. 
right  of,  Z7. 

accrues   when,  38. 

breach  of  condition  to  pay  taxes,  58. 

breach  of  single  condition;   stipulation,  43. 

default  in  interest;  effect  of  payment  of  interest  after  default, 

43. 
effect  of  usurious  interest,  43. 
default  in  payment  of  insurance,  43. 
default  in  payment  of  taxes ;  effect  of  payment  after  action 

brought,   58. 
effect  of  collateral  agreement  making  liability  contingent,  38. 
effect  of  failure  to  insure  premises,  42. 
effect  of  failure  to  repair  premises,  41. 
effect  of  misinformation  as  to  payment  of  taxes,  58. 
effect  of  tender  of  interest  after  indebtedness  has  fully  ma- 
tured, 43. 
foreclosure  on  overdue  note  before  other  notes  mature,  55. 
necessity  for  breach  of  all  conditions,  43. 
object  of  stipulation  in  trust  deed  maturing  debt  on  default  in 

payment  of  single  note,  55. 
technical  default  in  payment  of  taxes;  equitable  relief,  58. 
whole  debt  due  on  failure  to  pay  installment,  54. 
barred  when,  75. 
before  debt  is  due,  39. 
Georgia  rule,  39. 

on  abandonment  of  premises,  40. 
defined,  Z7. 

does  not  accrue  until  maturity  of  debt,  56. 
effect  of  six  months'  clause  on,  38,  47. 
effect  on  failure  to  fix  time  of  redemption  in  deed,  38. 
effect  on  of  entry  of  mortgagee,  38. 


1940  GENERAL   INDEX. 

References  are  to  Sections. 

FORECLOSURE— co«ii»M^(/. 
right  of — continued. 

election  to  declare  whole  debt  due,  62,  63. 

who  may  elect  so  to  do,  63. 
extension  of  time  of  payment,  70. 

what  is  a  sufficient  consideration,   70. 

when  valid,  70. 

when  void,  70. 
in  case  of  corporation  mortgage,  45. 

request  to  trustee  to  foreclose,  45. 
in  case  of  death  of  mortgagor,  44. 
in  case  of  mortgage  given  as  indemnity,  38. 
in  case  of  mortgage  given  for  support,  48. 
inherent,   Z7. 

not  affected  by  action  of  prior  mortgage,  Z7. 
not  affected  by  equitable  assignment  of  part  of  debt,  31. 
on  failure  to  pay  interest,  38,  43,  56. 
on  failure  to  pay  principal,  38. 

general  rule,  38. 

six  months  clause,  38,  47. 
Six  Months'   Clause. 

effect  of  on  right,  38,  47. 
under   Nebraska  code,  38. 

return  of   statute  not  sufficient  to  authorize,  38. 
venue,  29. 

Alabama  rule,  29. 
■  California  rule,  29. 

Iowa  rule,  29. 

Kentucky  rule,  29. 

New  York  rule,  29. 

South  Carolina  rule,  29. 

Utah  rule,  29. 
when  arises  by  indorser  for  accommodation,  67. 

default  in  payment  of  instalment,  54. 

default  in  payment  of  interest  on  note  secured  by  the  mort- 
gage, 56. 

default  in  payment  of  principal  or  interest,  56. 
the  rule  in  California,  56. 

election  of  mortgagee  that  whole  debt  become  due,  60,  61. 

fraud  by  holder  of  mortgage,  64. 

court  will  relieve  from  forfeiture,  64. 

to  declare  whole  debt  due,  64. 

to  declare  whole  debt  due;  notice  of,  62. 
sufficiency  of,   62. 
where  necessary,  62. 

to  declare  whole  debt  due;  power  of  court  to  relieve  mort- 
gagor, 64. 


GENERAL    INDEX.  1941 

References  are  to  Sections. 

FORECLOSURE— con/iMM^d. 
right  of — continued. 

when  extension  of  time  of  payment  by  parol,  71. 
when   failure  to  pay  taxes  and  assessments,   58. 
mortgage  secures  note  payable  on  demand,  52. 
note  first  maturing  not  payable  till  maturity  of  last,  51. 
payment  of  taxes  and  assessments  by  mortgagee  upon  mort- 
gagor's  default,  58. 
principal  not  to  be  called  in  during  mortgagor's  life,  51. 
property  sold   for  instalment   due,   50. 
single  mortgage  secures  two  debts,  66. 

may  be  foreclosed  in  favor  of  both  creditors  at  the  same 
time,   66. 
stipulation  indorsed  on  mortgage  by  mortgagee,  not  to  fore- 
close while  interest  paid,  51. 
where  foreclosure  optional  upon  default  for  certain  time,  54. 
where   mortgage   contains   stipulation   against   forfeiture,   51. 
where  mortgagee  holds  more  than  one  mortgage  on  the  same 
property  securing  different  debts,  66. 
separate  actions  not  allowable,  66. 
where   one   mortage    secures   several   notes  maturing   at   dif- 
ferent times,  65. 
where  time  of   payment  not   specified,   53. 
right  of  junior  mortgagee  to  compel,  332. 
Sale,    See   Sale. 
securing  several   notes,  55. 

default  in  payment  of  one,  55. 
set-off,  440  et  seq. 

Statutory  ;   by  advertisement.     See   Statutory   Foreclosure. 
stay  and  discontinuance  of  action  on  note,  392. 

upon  payment  of   instalment,  327. 
stipulation    for   delay,  47. 
Strict.     See   Strict   Foreclosure. 
Surplus.     See  Surplus. 
under  power  of  sale,  310. 
Welsh  mortgage  cannot  be,  38. 
what  claims   can  be   foreclosed,  276. 
amount   due  and   payable,  277. 
mortgage  against  deceased  mortgagor,  280. 
presentation  of  claim  against  estate,  280. 
Alabama   rule,  280. 
California   rule,   280,  282. 
Kansas  rule,  280. 
mortgage   assigned   as   collateral   security,  279. 
mortgage  defective  or  mutilated,  281. 
mortgage  given  as  indemnity,  283. 
mortgage  junior  to  one  previously  foreclosed,  289. 


1942  GENERAL    INDEX. 

References  are  to  Sections, 

FORECLOSURE— <:o»  ;/««£'(/. 

what  claims  can  be  foreclosed — continued. 

mortgage  mutilated  or  defective,  281. 

mortgage  on   charitable   institution,   278. 

mortgage  on  church  corporation,  278. 

mortgage  on  homestead,  282. 

mortgage  on  partnership  property,  286. 

mortgage  on  riparian  lands,  291. 

mortgage  on  undivided  interest,  287. 

mortgage  or  notes  destroyed  or  lost,  284. 

mortgage  with  power  of  sale,  288. 
what  claims  cannot  be  foreclosed,  294. 

fraud  in  mortgage  prevents,  296. 

inequitable   mortgage,  297. 

judgment   at   law   unexecuted,  295. 

mortgage  condition  or   which  remains  in   whole  or  in   part   un- 
performed, 294. 

mortgage  containing  prohibited  penalty,  294. 

mortgage  executed  by  guardian  upon  bond  of  ward,  294. 

mortgage  given  to  bank  as  collateral  security  cannot  be  foreclosed 
by  receiver,  when,  294. 

mortgage  invalid  for  any  reason,  298. 

mortgage  on  lands   in  hands  of   receiver  in  chancery,  294. 

mortgage  on  railroad's  right  of  way,  294. 

mortgage  on  ward's  land,  299. 

mortgage  void  at   law,  294,  298. 

oppressive  or  inequitable  mortgage,  297. 

payment  of  interest  prevents,   when,  300. 

penalty  in  mortgage  cannot  be  enforced,  294. 

where  mortgagee  or  assignee   is  administrator  of  the  estate  of 
deceased  mortgagor,   301. 

where  right  of  foreclosure  barred,  294. 
when  barred,  79. 

after  lapse  of  time  which  would  bar  a  recovery  of  the  premises, 
79. 

after  twenty  years'   uninterrupted   possession,   79. 
when  right  to  foreclose  arises,  37. 

default  in  payment  of  instalment  or  interest,  43. 

lapse  of  time  not  always  criterion,  Z7. 
when  right  to  foreclose  barred,  79. 
when  right  to  foreclose  not  barred,  80. 
where  mortgage  given   for  indemnity,  38. 
where  mortgage  given  for  support,  48. 
where  mortgagee  holds  one  mortgage  securing  several  notes,  65. 

Louisiana   rule,   65. 
who  barred  by,  15. 

who  may  foreclose.  See  P.arties  ;   Plaintiffs. 
works  discontinuance  of  action  on  note,  392. 


GENERAL    INDEX.  1943 

References  are  to  Sections, 

FORECLOSURE  BY   ADVERTISEMENT. 

See  Statutory  Foreclosure. 
FOREIGN. 

term  defined,   125. 
FOREIGN  EXECUTORS,  Etc. 

See  Executors  and  .A.dministrators. 
FOREIGN  LEGATEE. 

of  bond  and  mortgage ;  may  foreclose,  126. 
FORFEITURE. 

default  in  payment  of  insurance,  59. 

default  in  payment  of  taxes ;  equitable  relief,  58. 

for  nonpayment  of  ta.xes ;  effect  of  payment  after  action  brought,  58. 

relief,  64. 

by  court  where  it  was  responsible  for  default,  64. 

stay  of  proceedings  on  payment  of  instalment  due,  64. 

stipulation  against,  51. 

does  not  prevent  action  to  declare  debt  a  lien  on  land,  51. 
during  life  time  of   mortgagor,   51. 
FORMS.     See  separate  index  to  forms. 
FRAUD. 

affecting  consideration ;   as  defense,  420. 

as  defense,  400,  412,  420  ct  seq. 

against  assignee  of  mortgage,  412. 

as  ground   for  appointing  receiver,   799. 

as  ground  for  redemption,   1155,   1165. 

as  to  extent  and  boundaries  of  land.  429. 

as  to  number  of  acres,  428. 

as  to  vendor's  title,  427. 

purchase  money  mortgage,  427. 

attacking  conveyance   for  on   reference  to  ascertain   surplus,  901. 

burden  of  proof  on  party  moving  to  set  aside   foreclosure  to   show, 
645. 

by  holder  of  mortgage,  64. 

court   will   relieve    from    forfeiture  by   election   to   declare   whole 
debt  due,  64. 

cancelation  of  mortgage  for,  423. 

concealment  of  outstanding  title ;  effect,  496. 

contracts   and   assignments   avoided  by,   414. 

deceit ;  as  defense  in  foreclosure,  400. 

effect  on  title  of  purchaser  at  foreclosure  sale.  688. 

equitable    relief,   423. 

essential    to    estop    married    woman,   454. 

false  representations ;  as  defense  in  foreclosure,  425  et  seq. 

foreclosure ;   counter-claim   for   damages,  448,  449. 

fraudulent    intent,    necessity    to    constitute    estoppel,    457. 

ground  for  setting  aside  sale,  645. 

in  execution  of  note  and  mortgage ;  set  up  by  cross-bill,  423. 


1944  GENERAL    INDEX. 

References  are  to  Sections. 
FRAl]D'-conti)iucd. 

in  general ;  as  defense  in  foreclosure,  420. 

lets  in  to  redeem,  1155,  1165. 

may  exist  without  intention  to  mislead,  420. 

mistake  caused  by   innocent  misrepresentation   of  quantity   of  land; 

correction,  434. 
not   a   defense   to   foreclosure,    unless    participated   in   by   mortgagee, 

426. 
of  creditors;  assignment;   foreclosure  by  assignee;  defenses,  413. 
excessive  consideration ;  foreclosure,  406. 

defense,  406. 
mortgage  not  void  as  between  parties,  420. 
mortgagor  can  set  up  want  of  consideration,  401. 
Of  Mortgagee. 
estoppel,  456. 

as  against  purchasers   from  mortgagor,  457. 
of  mortgagor  to  set   up,  453. 
of  vendor;  as  to  incumbrances,  472. 

subsequent  agreement  by  vendee  to  assume  incumbrances ;   pay- 
ment, 472. 
on  married  woman,  426. 

when  available  as  defense  in  foreclosure,  426. 
purchase  money  mortgage,  423. 

counter-claim  for  damages,  423. 
defense  on  foreclosure;  relief,  422,  424. 
release   obtained  by ;   is  void,  478. 

right  of  mortgagor  to  elect  to  rescind  for  or  set  up  damages,  423. 
satisfaction  procured  by,  477. 

discharge  as  to  innocent  purchasers,  477. 
setting  aside  foreclosure  sale  for,  622,  627,  645  et  seq. 

appeal  from  order,  654. 
setting  aside  foreclosure  sale  for,  622,  627,  645  et  seq. 
subsequent  purchaser,  deed  first  recorded,  350. 

complaint  in  foreclosure  must  allege  fraud,  350. 
undue  influence,  435. 

relief   on   foreclosure,  435. 
upon  mortgagor,  as  defense  in   foreclosure,  421. 

defense  and  remedies  in  foreclosure,  423. 
upon  purchaser  assuming  mortgage,  427. 
defense  in  foreclosure,  427. 
when  avoids  mortgage,  420  et  seq. 
FRAUDS,  STATUTE  OF. 

foreclosure  sale;  memorandum,  611. 

parol   agreement  to   execute  mortgage ;   part  performance,   331. 
FRAUDULENT  CONVEYANCE. 
By  Mortgagor. 

of  land  mortgaged,  145. 

he  is  necessary  party  to  foreclosure,  145. 


GENERAL    INDEX.  1945 

References  arc  to  Sections. 

FRAUDULENT   CONVEYANCES— co»f/;n/^d. 
of   mortgage,   414. 

foreclosure   by   assignee;    defenses,   414. 
validity  as  between  parties,  420. 
FUTURE  ADVANCES. 

mortgage  to  secure;  consideration;   foreclosure,  404. 
failure  to  make;  set-ofT,  449. 
GEORGIA. 

foreclosure  before  debt  due,  39. 
GIFT. 

of  debt  secured  by  mortgage  payable  to  mortgagee  alone,  415. 
by  death  of  mortgagee  without  demand  of  payment,  415. 
GRANTEE. 

accomodation  has  no  right  to  surplus  moneys,  743. 
assuming  mortgage,  242. 

cannot  avoid  payment  because  of  defective  title,   while  he  is  in 
quiet  possession,  245. 
nor  because  of  usury,  245. 
cannot  release  by  grantor  in  New  York,  250. 

otherwise   in    New  Jersey,   251. 
need  not  sign  the  deed,  244. 
not  personally  liable  unless  grantor  is,  247. 

otherwise  in  Pennsylvania,  247. 
what  words  and  acts  bind  him,  244. 
at  execution  sale  of  equity  of  redemption,  a  necessary  party,   143. 
cannot  object  that  mortgagor,  his  grantor,  is  not  made  a  party,  138. 
cannot  release  purchaser,  assuming  mortgage,  from  liability  in  New 
York,   250. 
otherwise   in   New  Jersey,  251. 
not  liable  for  mortgage  debt,  unless  he  actually  assumes  it,  244. 
of  mortgaged  premises  not  liable  for  deficiency,  239. 
otherwise  in  New  Jersey,  240. 
the  rule  in  New  York,  241. 
of  mortgaged  premises  the  primary  debtor,  after  assuming  mortgage, 

242,  243. 
Of   Mortgagor. 

a  necessary  defendant,   146. 
assuming  debt  liable  for  deficiency,  743. 

can  plead  limitation  only  when  mortgagor  could  have  done  so,  82. 
entitled  to  benefit  of  extension  of  time,  466. 
may  redeem,   1153. 

no  greater  rights  than  mortgagor,  82. 

not  a  proper  party,  where  foreclosure  is  by  scire  facias,  146. 
of  mortgagor's  assignee  in  bankruptcy  a  necessary  defendant,   146. 
of   mortgagor's  grantee,  bound  by  the  latter's   recognition  of   mort- 
gage, 82. 
bound  by  his  vendor's   acts   and   declarations,   82. 


1946  GENERAL    INDEX. 

References  are  to  Sections. 
GRANTEE— continued. 
redemption  by,  1210. 
right  to  surplus  moneys,  846. 

accommodation  has  no,  843. 
subsequent  may  redeem,  1210. 

surety    for   grantee   assuming   mortgage   discharged   by   extension   of 
time   without   consent,  243. 
GRAVEL  ROAD  TAX. 

set-off  on  foreclosure,  445. 
GREEN  HOUSE. 

does  not  pass  to  purchaser  on  foreclosure  sale,  715. 
GROWING  CROPS.     See  Emblements. 
GUARANTEE. 

of  bond  and  mortgage  by  separate  instrument;  personal  liability,  256. 
of  mortgage  debt,  253. 

guarantor  a  proper  defendant.  253. 
costs  in  case  of  death,  984. 
judgment  for  deficiency  against  742. 
liable  for  deficiency,  229. 
personally    liable,   253. 
GUARANTOR. 

subsequent  guarantor  of  mortgage  debt  as  necessary  party,  256. 
GUARDIAN  AND  WARD, 
answer  by  guardian,  502. 

requisites  of  order  of  reference  in  case  of,  502. 
application  for  judgment  against  infant;   what  facts  must  be  shown, 

524. 
cost  to  guardian  ad  litem,  998. 
guardian  ad  litem  of  infant  defendant,  268. 
appointment;  how  made,  268. 

appointment  void  until  service  of  summons  on  infants,  268. 
effect  of  failure  to  appoint,  269. 
guardian ;  executing  mortgage,  a  desirable  defendant,  174. 
of  infant  heir  of  owner,  not  a  necessary  defendant,   162. 
of  subsequent  incumbrancer  a  necescary   defendant,   195. 
infant  defendant ;  answer  by  guardian  ad  litem,  529. 

appearance  by  guardian,  673. 
infant  under   fourteen  years  must  be  served   with   summons,  268. 
neglect,  etc.,  of  guardian,  as  ground  for  setting  aside  foreclosure  sale, 

653. 
notice  to,  of  taxation  of  costs  in  foreclosure,   1016. 
power  of  guardian  to  purchase  at  foreclosure  sale,  609. 
release  of  purchaser  from  completing  purchase,  673. 
successor  of  guardian  may  foreclose,  133. 
undue  influence  by  guardian ;  relief  on  foreclosure,  435. 
HABITUAL  DRUNKARD.     See  Drunkenness. 


GENERAL   INDEX.  1947 

References  are  to  Sections. 

HEIRS. 

at  law  do  not  receive  title  r.nd  possession  of  personal  property,  192. 
cannot  foreclose,  when.   122. 
Judgment  Creditors. 

cannot  redeem  from  mortgage  foreclosure,  when,   1087. 
can  redeem  from  mortgage  foreclosure,  when.  1087. 
may  set  up  usury  as  defense  in   foreclosure,  411. 
mistake;   correction   of,   as   against;   on   foreclosure,  431. 
necessar>-   defendants   to    foreclosure   of   mortgage   executed   by  per- 
sonal representatives  to  pay  debts  of  estate,  175. 
of  assignor  of  mortgage,  and  all  interest  therein,  not  necessary  de- 
fendants,  198. 
of  deceased  mortgagor  may  purchase  at  foreclosure  sale,  609. 
of  grantee  of  mortgaged  premises  necessary  party  defendant,  136. 
of   infant,   lunatic,    idiot,   or   habitual    drunkard,   owner   of   premises, 

necessary  defendants,  174. 
of  joint  mortgagors,  not  usually  necessary  parties,  142. 
of  mortgagee  allowed  to  revive  the  action,  122. 

cannot  assign  mortgage  so  as  to  enable  assignee  to  foreclose,  122. 
cannot  foreclose,  122. 
when  necessary  parties,   120. 
of  mortgagor,  no  longer  owner  of  equity  of  redemption,  not  neces- 
sary. 138. 
omitted  as  defendants,  may  appear  and  defend,  162. 
or    owner    of    equity    of    redemption,    not    necessary    defendants 

in  foreclosure  by  advertisement,  161. 
when  necessary  defendants,   161,   162. 
of  owner  of   equity  of   redemption  not  necessary  defendants,   where 
equity  of  redemption  devised,  162. 
necessary   defendants,    161. 
of   persons   liable   for   deficiency   must   be   sued   therefor,    separately 
from   foreclosure,   235. 
not  proper  defendants,  235. 
of  persons  subsequently  liable  for  deficiency,  not  proper  defendants, 

258. 
of  subsequent  incumbrancers  not  necessary  defendants,   192. 
of  tenants  by  entirety,   not  necessary  defendants,    162. 
of   wife  dying  during  foreclosure,  not  necessary   defendants,    155. 
recovery  of  land  from  purchaser  at  invalid  foreclosure  sale,  701. 
right  to  be  served  with  notice  of  sale,  921. 
HIGHWAYS. 

gravel  road  tax,  445. 

set-off  on  foreclosure,  446. 
HOMESTEAD. 

duress  of  wife  in  mortgage  on,  438. 
relief  on  foreclosure,  438. 


1948  GENERAL   INDEX. 

References  are  to  Sections. 

UOMESTEAB— continued. 
Foreclosure. 

defense  of  usury  available  to  wife,  411. 
sale;  order  of  alienation,  603. 
mortgage   covering;    procured   by    fraud;    foreclosure,   426. 

foreclosure;  complaint;   description  of  property,  357. 
order    of    sale   when    mortgage    covers   homestead    and    other    lands, 

603. 
right  in  surplus  moneys ;  distribution ;  priority,  882. 
signature  obtained  by  duress,  408. 

defense  against  assignee  of  note,  408. 
uncertainty   of    description    not    cause    for    setting    sale    aside,    when, 
633. 
HOUSE. 

removed  from  premises,  not  subject  to  mortgage,  302. 
HUSBAND   AND   WIFE.     See  also  Dower;   Homestead;   Widows. 
competent  witness   for  each  other  on   reference  to  compute  amount 

due,  509. 
dower;  bar  by  foreclosure,  necessary  averments,  351. 
equitable  provision  for  wife  and  children  in  distribution  of  surplus, 

878. 
foreclosure   of   mortgage   executed   by ;   decree,   355. 
fraud   as   to  creditors   does  not  invalidate  mortgage  as  between  the 

parties,  420. 
Husband. 

a    necessary    defendant    to    foreclosure    against    wife's    separate 

estate,  after  her  death,   160. 
estate  by  curtesy ;   requisites,   160. 

in  New  York,  160. 
may  execute  valid  mortgage  to  wife,  134. 

of  mortgagor  of  separate  estate  not  usually  a  necessary  defend- 
ant, 160. 
of  subsequent  incumbrancer  not  a  necessary  defendant,  191. 
signing  bond  secured  by  mortgage  on  wife's  separate  estate,  liable 
for  deficiency,  228. 
marriage  to   mortgagor   after   taking   mortgage   does   not   extinguish 

mortgage,  134. 
mortgage  to  secure  bond  for  support,  360. 
complaint;  averment  as  to  breach,  360. 
Wife. 

allowed    to    foreclose    mortgage    to    herself    and    husband,    after 

his  death,  134. 
a  necessary  defendant,  155. 
assigning  mortgage  and  guaranteeing  payment,  personally  liable 

in  New  York,  257. 
a  subsequent  incumbrancer,   a  necessary  defendant,   191. 
defense  of   usury   available  to  protect   homestead,  411. 


GENERAL    INDEX.  1949 

References  are  to  Sections, 

HUSBAND  AND  WIFE— continued. 
Wife — continued. 

duress  over;  defense  on  foreclosure;  relief,  438,  439. 

dying  during  foreclosure,  heirs  and  personal  representatives  not 

necessary  parties,   155. 
estoppels   against,   454. 
executing  mortgage,  liable   for  deficiency  to  extent  of  value  of 

mortgaged  lands,  233. 
fraud  of,  as  defense  in  foreclosure,  426. 
fraud  upon;   defense   in   foreclosure,  426. 
has  same  rights  and  remedies  as  feme  sole,  134. 
having  made  grant  of  dower,  still  a  necessary  defendant,  155. 
loan  association  mortgage  binds  separate  estate  of,  515. 
may  foreclose  against  husband,  134. 
may  foreclose  in  her  own  name,  134. 

may,  under  the  statutes,  usually  mortgage  her  separate  estate,  154. 
mortgage  covering  separate  estate;  rents  and  profits,  808. 
mortgage  on  estate  of,  154. 

defense  of  fraud  in  procuring  execution,  420. 
mortgage  on  property  of,  to  secure  husband's   debt,  403. 

consideration,  403. 
mortgaging  separate  estate,  husband  not  usually  a  necessary  de- 
fendant, 160. 
not    a    necessary    defendant,    where    dower    rights    abolished    by 
statute,  155. 
where    rights    of    husband    and    wife   completely    severed    by 
statute,  159. 
not  joining  in  purchase  money  mortgage,  a  necessary  defendant, 
156. 
otherwise  in  Illinois,  Indiana  and  Michigan,   156. 
not  made  a  defendant,  dower  not  extinguished,  155. 
not  prevented  from  foreclosing  mortgage  to  herself  and  husband, 
but  really  belonging  to  her,  by  discharge  from  him,  134. 
of   infant,  lunatic,   idiot,   or  habitual   drunkard,   not   a   necessary 
defendant   to    foreclosure    of    mortgage   by   guardian    or 
committee,  and  not  executed  by  her,  174. 
of  mortgagor,   having  separate  estate,   necessary  defendant,    154. 
of   subsequent   incumbrancer  a   necessary   defendant,    191. 
omitted  as  a  defendant,  cannot  maintain  ejectment,   156. 

may  have  value   of   dower   computed   and   paid   before   hus- 
band's death,    156. 
may  redeem,   156. 

right  to  redeem  does  not  accrue  till  death  of  husband,   156. 
purchasing   premises    and    assigning   mortgage,   personally    liable, 

257. 
right  of  to   hold  surplus,  880. 
right  of  to  redeem,  1133. 


1950  GENERAL    INDEX, 

References  are  to  Sections. 
HUSBAND  AND  WIFE— continued. 
Wife — continued. 

rights  as  to  mortgaging  her  estate  the  same  as  those  of  a  male 

or  a  feme  sole,   154. 
service  of  summons  on,  under  early  practice,  157. 
service  of  summons  on,  under  present  practice,   158. 
must  be  personal  in  New  York,  158. 
notice   of    statutory    foreclosure,  921,   924. 
of  summons  upon  separately  when  necessary,  267. 
signing  bond  or  note  secured  by  mortgage,  liable  for  deficiency ; 
general  rule,  230,  232. 
New  York  act  of  1884,  231. 
strict  foreclosure  against,  969. 

under  the  common  law,  could  not  mortgage  separate  estate,  154. 
HYPOTHECARY  ACTION. 

lies  in  Louisiana  to  enforce  claim,  855. 
IDENTIFICATION. 

of  notes  imperfectly  pleaded,  340. 
ICE. 

title  of  purchase  in,  689. 
IDIOTS.    See  also  Insane  Persons. 

heirs,  devisees,  or  legatees ;  necessary  defendants,  174. 
owning    premises    necessary    defendants,    174. 
subsequent  incumbrancers,  proper  defendants,  195. 
committee  of  a  necessary  defendant,  195. 
ILLEGAL  CONSIDERATION.     See  Answers  and  Defenses;  Consid- 
eration. 
as  defense  to  action  to  foreclose,  436. 
ILLINOIS. 

lien  of  decree  of  foreclosure  in,  13. 
ILLITERACY. 

as  defense  to  foreclosure,  400. 
IMPRISONMENT. 

duress  of  person;   defense  on   foreclosure;   relief,  439. 
not   part  of   time   limited    for  commencement   of    action   to   redeem, 
1148. 
IMPROVEMENTS, 
allowance  for,  1231. 
by  bona  fide  occupant,  716. 
by  bona  fide  purchaser,  716. 
by  remodeling  house,  716. 

made  with  knowledge  to  be  paid  for  on  redemption,   1228. 
pass  to  purchaser  on   foreclosure,  716. 
payment  for  on  redemption,  1189,  1205. 

personalty  affixed  to  freehold  does  not  pass  on  foreclosure,  when,  716. 
IN  PAIS.  See  Estoppel:  In  Pais. 

confirmation  of  sale  by  acts  in,  683. 


GENERAL   INDEX.  1951 

References  are  to  Sections, 

IN  PERSONAM. 

foreclosure  proceedings  are  not,  8,  11. 
IN  REM. 

foreclosure  proceedings  are,  8,  11. 
INADEQUACY  OF  PRICE. 

as  ground  for  setting  sale  aside,  640.    See  Sale,  Setting  Aside,  In- 
adequacy. 
when  granted  for,  640. 
INCHOATE  RIGHTS.     See  Dower. 

right   to  in   surplus   moneys,   878,   879. 
INCOMPETENT   DEFENDANTS. 

service  of  summons  on;  when  not  necessary,  270. 
INCUMBRANCES. 

covenant  to  pay ;  breach ;  defense,  464. 

pendente  lite   incumbrancers   not   necessary  defendants,    190. 
when  equity  will  keep  alive,  477. 
INDEMNITY. 
Mortgage. 

allegations  in  claims  to  foreclose,  361. 

conditions   precedent   to    foreclosure,  67. 

default,  67. 

defense,  465. 

foreclosure  of,  See  Foreclosure;  Indemnity  Mortgage. 

complaint  in,  necessary  averments,  361. 
may  be  foreclosed  by  security  alone,  90. 
right  of  foreclosure  accrues  when,  38,  66. 
when  right  to  foreclose  arises,  38,  66. 
of  surety,  by  confession  of  judgment,  875. 
lien  on  surplus;   priority,  875. 
INDEX. 

no  part  of  record,  398. 
INDORSEMENTS. 

on  mortgage,  complaint  must  set  forth,  Z2>7. 
INFANCY  AND  INFANTS. 

answer  by  guardian  ad  litem.     See  Guardian  and  Ward. 

as  a  defense  in  foreclosure,  395,  396. 

character,  as  realty  or  personalty,  of  surplus  on  sale  of  estate  of,  842. 

conveyance  by   guardian   during   minority    as    disaffirmance   of   prior 

mortgage,  395. 
concluded  by  statutory   foreclosure,  949. 
costs ;  allowance  to  guardian  ad  litem,  998. 
defendants ;  necessary  allegations  in  complaint,  341,  348. 
motion  for  judgment;  what  facts  must  be  shown,  524. 
must  be  served  with  summons,  268. 
non-resident  may  be  served  by  publication,  268. 
order  of  reference  to  compute  amount ;  contents,  509. 


1952  GENERAL    INDEX, 

References  are  to  Sections. 
INFANCY  AND  IN¥ K^TS— continued. 
defendants — continued. 

reference  to  compute  amount,  513. 

examination   of   plaintiff  must   be   exhaustive,   513. 
reference  to  compute  amount  due,  531. 
requisite  of  order  of  reference,  503. 

when   purchaser  will   be   released    from    completing   purchase   in 
case  of,  673. 
heir  of  owner  of  equity  of  redemption  a  necessary  defendant,  161. 
mortgage  by,  395. 

burden  to  prove ;  ratification,  395. 
disaffirmance  and  ratification,  395. 
merely  voidable;  disaffirmance,  395. 
statutory  foreclosure,  914. 
not  part  of  time  limited  for  commencing  action  to  redeem,  1148. 
notice  to  guardian  of  taxation  of  costs  on  foreclosure,   1016. 
owner  of  premises ;  necessary  defendant,  174. 

heirs,  devisees,  or  legatees  of,  necessary  defendants,  174. 
power  of  guardian  to  purchase  at  foreclosure  sale,  609. 
purchase  money  mortgage  by ;  foreclosure,  396. 
right  of  infant  to  disaffirm  mortgage  on  attaining  majority,  395. 

necessity'  of  tendering  back  consideration,  395. 
right  of  infant  to  such  defense,  395. 

effect  of  false  statement  as  to  age,  395. 
setting  foreclosure  sale  aside  for  benefit  of,  653. 
strict  foreclosure  against,  974. 
subsequent  incumbrancer  a  proper  defendant,  195. 

guardian  a  necessary  defendant,  195. 
undue  influence  by  parent  or  guardian,  435. 

relief  on  foreclosure,  435. 
what  amounts  to  disaffirmance  of  mortgage,  395. 
INFLUENCE,  UNDUE. 

relief  on  foreclosure,  435. 
INJUNCTION. 

in  foreclosure ;  not  granted  unless  prayed  for,  354. 

or  unless  facts  arise  after  suit  brought,  354. 
resemblance  to  order  appointing  receiver,  785. 

restraining  foreclosure  until  determination  of  ejectment  against  mort- 
gagor, 496. 
restraining  sale;  appointment  of  receiver  in  case  of,  800. 
Statutory  Foreclosure. 

restraining  resident  mortgagee  from  selling  at  public  sale  lands 

without  the  state,  913. 
restraining  sale  under,  945-947. 
INSANE  PERSONS.     See  also  Drunkenness;  Idiots. 

committee  of  subsequent  incumbrancer,  who  is  a  lunatic,  idiot,  or  habit- 
ual drunkard,  a  necessary  defendant,  195. 


GENERAL   INDEX.  1953 

References  are  to  Sections, 

INSANE  VERSO'SS— continued. 
defendants  in  foreclosure,  672. 

purchaser    not    released    from    completing    purchase    because    no 
committee  was  appointed,  672. 
defendants ;  service  of  summons  on ;  when  not  necessary,  270. 
insanity;   no  hindrance  to  legal   proceedings,  672. 

of  mortgagor,  as  defense  in  foreclosure,  397. 
owner  of  premises ;  necessary  defendant,  174. 

heirs,  devisees,  or  legatees,  necessary  defendants.  174. 
subsequent  incumbrancer,  a  proper  defendant,  195. 

committee  a  necessary  defendant,  195. 
surplus,  on  sale  of  estate  of ;  character  as  realty  or  personalty,  842. 
INSANITY. 

not  part  of  time  limited  for  commencing  action  to  redeem,  1145. 
of  mortgagor,  as  a  defense  to  foreclosure  of  mortgage,  397. 

after  execution  of  mortgage  not  grounds  for  setting  sale  aside.  62<S. 
INSOLVENCY. 

as  determining  right  to  appointment  of  receiver.     See  Receiver. 
assignee  for  creditors  may  set  up  usury  as  defense  in  foreclosure,  411. 

takes  subject  to  equities;  is  trustee;  not  a  purchaser,  413. 
takes  only  title  of  assignor,  413. 
assignment;  foreclosure  by  assignee,  413. 

creditors  not  necessary  parties,  413. 
bankruptcy  assignment  by  mortgagee,  413. 

foreclosure;  defenses,  413. 
of  heirs  or  devisees;  remedy  of  judgment  creditors,  871. 

as   to   surplus    arising   on   foreclosure   sale,   871. 

remedy  of  mortgagee  as  to  surplus,  892. 
of  plaintiff  in  foreclosure,  442. 

set-off  by  owner  of  equity  of  redemption,  443,  447. 
INSTALLMENTS. 

effect  of  delay  in  paying,  327,  328. 

not  yet  due,  judgment  for  deficiency  for,  752.     See  Deficiency. 
payment  of,  terminates  foreclosure,  468. 
INSUFFICIENCY. 

of  allegations  as  to  claim,  338.     See  Complaint. 
INSURANCE. 

allowance   in    surplus   proceedings   of    premiums   paid   by    mortgagee, 

518,  1020. 
by  mortgagee,  1107. 

policy  providing  sale  shall  not  affect  right  under,  1107. 
covenant  for ;  default,  914. 

statutory  foreclosure.  914. 
paid  by  mortgagee  subsequent  to  commencement  of  foreclosure,  518. 

not  allowable  on  computation  of  amount  due,  518. 

Mortg.  Vol.  II.— 123. 


1954  GENERAL    INDEX. 

References  are  to  Sections. 
INSURANCE— co;;fun«'c?. 

premiums  paid  by  mortgagee,  518. 

allowance  on  reference  to  compute  amount  due,  518. 
in  distribution  of  surplus,  1020. 
state  superintendent  of;  foreclosure  by  successor,  133. 
INTEREST. 

accumulation,  as  ground  for  appointment  of  receiver,  798. 

appointment  of  receiver  at  instance  of  junior  incumbrancers,  817. 
allowed  on  redemption  when,  1214. 
clause  in  mortgage,  43. 

breach   making   mortgage   due,   43.     See   Foreclosure;    Interest 

Clause. 
efifect  of,  50. 
not  a  penalty,  50. 
compound  and  usury  on  redemption,  1178. 
damages ;  failure  of  title,  448. 
default  in  payment,  effect,  43,  56. 

where  mortgage  contains  interest  clause,  43. 
where  it  does  not,  50. 
effect  of  delay  in  paying  installment,  326,  328. 
estoppel  of  mortgagor  to  set  up  illegal  interest  as  against  assignee  of 

mortgage  in  good  faith,  453. 
illegal;  set  off  on  foreclosure,  446. 
included  in  computation  by  referee  of  amount  due,  514. 
on  advancements,  1022. 
on  costs,  1023.     See  Costs. 
on  taxes,  right  of  mortgagee  to,  516. 

partial  payment  to  stop ;  received  as  deposit ;  subsequent  acceptance, 
472. 
application  as  of  date  made,  472. 
payment;  proof  of,  rebuts  presumption  from  adverse  possession,  75. 
by  life  tenant;  preserves  life  of  mortgage  as  against  remainder- 
man, 474. 
limitation  of  action,  474. 
by  purchaser  of  equity  of  redemption,  474. 
effect  to  prevent  running  of  limitation  against  mortgagor's  liability, 

474. 
giving  note  for  is  not,  469. 
inability  to  find  mortgagee  is  no  defense,  475. 
prevents  or  removes  bar,  81. 

will  not  prevent  or  remove  bar,  as  against  mortgagor's  grantee, 
81. 
prevents  or  removes  bar,  where  several  interested   in   equity  of 
redemption,  81. 
purchaser  not  required  to  pay  in  case  of  delay  of  parties  in  perfecting 

title,  679. 
receiving  of  ground  for  redemption,  1154. 


GENERAL   INDEX.  1955 

References  are  to  Sections, 

INTEREST— rowfiHu^rf. 
refusal  to  accept,  43. 

effect  on  right  to  foreclose,  43. 
stayed  by  tender,  583. 
stopped  by  tender  of  money  payable  on  demand,  344. 

tender  does  not  stop  when,  1102. 
unpaid,  addition  to  principal ;  compound,  328. 
Usury.     See  Usury. 

as  defense  in  foreclosure,  409. 
on  redemption,  1178,  1203. 

question  of  can  not  be  raised  on  confirmation  of  sale,  614. 
stipulation  for  attorney's  fee,  1003-1005. 

when  purchaser  subject  to  mortgage  not  estopped  to  set  up,  460. 
INTERESTED  PERSON  NOT  PARTY  TO  FORECLOSURE. 

ground  for  redemption,  1159. 
INTERLOCUTORY  PROCEEDINGS. 

reference;  of  issues;  failure  of  a  defendant  to  appear  on  trial,  529. 
to  compute  amount,  516. 

allowance  of  taxes  and  assessments,  516. 

application  for,  530. 

building  and  loan  association  mortgage,  515. 

fines  and  dues,  515. 
change  of  referee,  510. 

competency  of  service  and  witnesses,  509,  513. 
computation  on  failure  to  pay  taxes  and  assessments,  517. 
computation;  statement  of  items,  514. 

allowance  for  interest,  repairs  and  payment  of  prior  liens, 
514. 
contents  of  order;  directions  as  to  computation,  508. 
case  of  non-answering  defendant,  510. 
direction  to  ascertain  if  premises  can  be  sold  in  parcels, 
508. 
county  in  which  may  be  held;  venue,  521. 
determination  as  to  how  much  of  premises  shall  be  sold.  571. 

sale  in  parcels,  571. 
discretion  and  authority  of  referee  as  to  conduct  of  proceed- 
ings, 521. 
entry  and  service  of  order  prerequisite  to  action  by  referee, 

512. 
extent  and  scope  of  examination,  513. 
failure  to  appear  at  trial  after  answering,  507. 
finding  as  to  how  premises  should  be  sold,  520,  522. 
general  powers  and  duties  of  referee,  519. 
in  case  default  of,  or  admission  by  answer,  502. 
infant  and  absentee  defendants,  531. 
contents  of  order,  509. 
examination  of  plaintiff  must  be  exhaustive,  513. 


1956  GENERAL    INDEX. 

References  are  to  Sections. 

INTERLOCUTORY   PROCEEDINGS— confwK^i. 
reference — continued. 

to  compute  amount — continued. 

infant  defendants ;  requisites  of  order,  502. 

insurance ;    allowance   of   premiums  paid  by   mortgagee,   518, 

1020. 
judgment  upon  report,  524-527. 
mortgage  upon  lease-hold  interest,  517. 

allowance  of  rent;  charges  paid  by  mortgagee,  517. 
motion  papers,  505,  506. 
nature  of  proceedings,  511. 
necessity  of  notice  of  motion,  503,  504. 
oath  of  referee,  511. 
order;  not  appealable,  508. 

appeal  from  final  judgment  brings  up,  508. 
should  define  duties  of  referee  and  limit  scope  of  refer- 
ence, 510. 
should  direct  referee  to  report  proofs  and  evidence  taken, 
510. 
power  of  the  court  to  order,  529. 

referee;  power  of  to  determine  questions  of  priority,  519. 
authority  limited  by  order;  no  discretion,  513. 
governed  by  chancery  rules  and  practice,  519. 
to  be  selected  by  court,  507. 
report;  contents,  519. 

filing;  confirmation,  523. 

exceptions  ;  new  hearing,  523. 
necessity ;    sufficiency ;    contents,    522. 

of  referee  that  premises  can  be  sold  in  parcels,  508. 
time  and  place  of  making  motion,  504. 

court  calendar,   504. 
when  part  of  defendants  have  not  answered,  530. 
who  may  be  referee,  507. 
who  may  prosecute  order  of  reference,  512. 
withdrawal  from  referee,  510. 

special  order  of  court  necessary,  510. 
witnesses ;  testimony  need  not  be  signed,  513. 
INTERMEDIATE  ASSIGNORS.     See  Assignment. 
INTERMEDIATE   PURCHASER. 

assuming  mortgage  personally  liable.  252. 
not  assuming  mortgage,  not  liable,  252. 
INTERVENORS. 

right  of  bond-holder  secured  by  deed  of  trust  to  intervene  in  foreclos- 
ure by  trustee,  127. 
right  to  surplus   money,  843. 
INVALID  MORTGAGE. 

sale  under  carries  no  title.  691. 


GENERAL    INDEX.  1957 

References  are  to  Sections. 

IOWA. 

courts   of   equity   have   jurisdiction  to    foreclose,   24.     See   Equity  ; 
Courts  of. 
IRREGULARITIES. 

effect  on  title  or  foreclosure,  692. 
in  conduct  of  sale,  638. 

ground  for  setting  aside.  638.     See  Sale;  Setting  Aside. 
waived  by  filing  bill  to  redeem,  1217. 
ISSUES.     See  Answers  and  Defenses — Trial. 
JOINDER. 

of  causes  of  action.     See  Complaint. 
of  defendants.     See  Complaint  ;  Parties. 
JOINT   DEBTORS   AND   CREDITORS, 
discharge  by  one  creditor ;  vadility,  477. 
principal  liability;   not  determined  on   foreclosure,  483. 
statutory  foreclosure,  916. 

joinder  of  persons  jointly  interested,  916. 
JOINT  MORTGAGEES. 

any  one  or  more  may  foreclose,  95. 

one  dying,  survivor  may  foreclose,  98. 

or  in  severalty,  refusing  to  join  as   plaintiffs,  necessary  defendants, 

203. 
where  joint  mortgage  secures  different  debts  in  severalty,  all  debtors 
are  necessary  parties,  95. 
JOINT  MORTGAGORS. 

heirs  and  personal  representatives  of,  not  usually  necessary  parties, 
142. 
JOINT  TENANTS  AND  TENANTS  IN  COMMON, 
power  to  purchase  at  foreclosure  sale,  609. 
reference  to  ascertain  surplus,  902. 

statement  of  account  of  tenant  in  common,  902. 
sale  of  moiety  of  lands  held  by,  578. 
Tenant  in  Common. 

mortgage  by  can  be  foreclosed  only  after  partition,  140. 
must  be  proceeded  against  jointly,  141. 
one  can  not  sever  debt,  and  pay  a  moiety,  307. 
will  not  affect  rights  of  co-tenants,  140. 
owners  of  mortgaged  premises,  are  all  necessary  defendants,  137. 
with  mortgagor,  not  necessary  defendants,  141. 
Tenants  by  the  Entirety. 

heirs  of  one  deceased  not  necessary  defendants,  162. 
JUDGMENT. 

adverse  or  paramount  title ;  claimant  of,  485. 

when  concluded,  485. 
against   mortgagor,    becomes    inferior   to   purchase   money   mortgage, 
182. 
lien  on  surplus,  871, 


1958  GENERAL   INDEX. 

References  are  to  Sections. 
JUDQWE^T— continued. 

against  sheriff,  for  failure  to  return  execution,  876. 

distribution  of  surplus,  priority,  876. 
a  lien  from  time  of  docketing,  183. 
although  erroneous,  concludes  purchaser,  if  he  is  a  party  to  the  action, 

671. 
amendment  of,  not  necessary  to  compel  purchaser  at  foreclosure  sale 

to  complete  purchase,  664. 
application  for;  notice,  525. 

necessity  and  sufficiency,  525. 
bars  redemption  when,  1245. 
by  confession,  982. 

allowance  of  costs  on  offer  made,  982. 
as  indemnity ;  lien  of  on  surplus ;  priority,  875. 
mortgage  to  secure ;  consideration ;  validity,  403. 
by  default,  527. 

against  defendants  claiming  interest,  502. 
application  for ;  what  must  be  shown,  524. 
after  reference,  324-326. 
time;  notice.  532. 
conclusiveness,  502. 
costs  on,  997. 

extent  of  relief  granted,  527. 
or  on  report,  must  follow  prayer,  in  fixing  order  of  liability  for 

deficiency,  224. 
power  to  open,  528. 

subsequent  pleadings  and  proceedings,  528. 
relief  confined  to  cause  stated  in  complaint,  335. 
when  mortgage  not  set  out  in  complaint,  339. 
broader  than  prayer  in  complaint,  354. 
conclusiveness,  against  third  persons  made  defendants,  362. 

letters  of  administration  irregularly  granted,  618. 
conditional  on  writ  of  entry  not  conclusive,  1235. 
confession  of  judgment;  mortgage  to  secure,  403. 
by  one  member  of  partnership;  priority,  877. 

distribution  of  surplus,  877. 
consideration ;  validity,  403. 
correction  to  conform  to  referee's  report,  526. 
creditor ;  bound  by  lis  pendens  in  foreclosure,  375. 

of  mortgagor  need  not  pay  balance  of  mortgage  debt  on  redemp- 
tion, 1191. 
may  apply  to  have  foreclosure  sale  set  aside,  620. 
may  set  up  usury  as  defense  in  foreclosure,  411. 
of  owner  of  life  estate,  a  necessary  defendant,  182. 
pendente  lite  not  necessary  defendant,  183. 
right  to  redeem,  1087. 


GENERAL    INDEX.  1959 

References  are  to  Sections. 
JJJDGMElslT— continued. 
creditor — continued. 

subsequent;    any   defendant    having   real    interest   may  object    to 
omission,  183,  386. 
assignees  of,  necessary  defendants,  188. 
having  assigned  judgment,  not  a  necessary  defendant,  186. 
if  not  made  defendants,  only  remedy  is  redemption,  184. 
may  answer,  386. 
of  owner  of  premises,  necessary  defendants,  182. 

can  not  be  made  plaintiffs,  182. 
omitted  as  a  defendant,  may  redeem  directly  or  by  execution, 
under  a  sheriff's  deed,  184. 
redeeming,  need  not  pay  costs,  184. 
Right. 

not  affected  if  not  made  defendant,  182. 
to  surplus  moneys,  848. 
who  has  levied  execution,  remains  a  necessary  defendant  until 
satisfaction,  183. 
declaring  plaintiff  entitled  to  redeem  will  be  entered  when,  1087. 
decree  of  sale;  form  and  contents,  534. 

proceedings  thereunder,  533. 
defective;   if  any   person  having  an  interest  in  the  premises   is   not 

a  party,  136. 
description ;  of  mortgaged  property,  357,  358. 
of  premises;  mistake,  711. 
amendment,  711. 
direction ;  as  to  who  may  purchase  at  sale,  609. 

order  of  sale;  inverse  order  of  alienation,  591,  593. 
quantity  of  premises ;  parcels,  571,  572. 
discharge  of  mortgage  by  judgment  on  new  note  given  for  balance  on 

settlement,  477. 
distribution  of  surplus ;  priority  of  liens,  856. 
doctrine  of  lis  pendens.     See  Lis  Pendens. 
does  not  affect  rights  of  subsequent  incumbrancers  not  made  parties, 

179. 
dower ;  when  not  barred,  486. 
effect  of,  1. 
erroneous  or  irregular,  721. 

does  not  affect  title  of  purchaser  on  foreclosure,  721. 
relief  of  purchaser  against,  671. 
execution ;  lien  of  on  surplus,  874. 

prioritj',   874. 
final;    appeal   from   brings   up   order   of   reference   and   interlocutory 
decree,  508. 
by  judge  who  did  not  try  issues,  526. 
for  actual  amount  due,  402. 
for  debt  does  not  discharge  mortgage,  477. 


1960  GENERAL   INDEX. 

References  are  to  Sections. 
]\JDGMENT— continued. 

For  Deficiency,  733.    See  Deficiency,  Judgment  for. 

necessity  for  notice  to  mortgagor,  735. 

refused  by  Judge  Kent,  11. 
grounds  of  refusal,   11. 
for  too  large  an  amount ;  setting  aside  sale  for.  618. 
for  whole  amount ;  upon  non-payment  of  installment,  752. 
in  action  on  note  or  bond ;  when  bars  foreclosure.  392. 
in  case  of  default ;  what   relief  granted.  335. 
in  case  of  joinder  of  senior  mortgagee,  333. 
in  foreclosure  of  mortgage  executed  by  husband  and  wife.  355. 
in  personam,  effect  where  mortgage  recognized  in,  17. 
in  strict  foreclosure,  976. 

land  included  in  but  not  in  complaint  will  not  pass  to  purchaser,  692. 
lien  of ;  protection  of  in  distributing  surplus,  873. 

what   interests  bound  by,  872. 
lis  pendens;   subsequent   incumbrance,  375. 

mistake;  correction  as  against  judgment  creditors;   foreclosure,  431. 
mortgage  containing  defective  description  of  property,  359. 
motion  for ;  necessity  of  notice,  524. 

requisites ;  where  and  when  made,  524. 

what  facts  must  be  shown,  524. 
no  personal  decree  prior  to  final  judgment,  735. 
not  a  lien  unless  proceedings  for  its  recovery  completed,  183. 
not  conclude  prior  incumbrancers,  384. 
not  modify  decree  of  sale  in  partition  of  same  lands,  527. 
not  reversed  for  refusal  to  dismiss  foreclosure  for  small  installment, 

327. 
obtained  by  fraud ;  effect  of,  20. 
of  foreclosure  and  sale ;  contents,  526. 

direction  as  to  how  property  shall  be  sold,  526. 

variation  from  referee's  report ;  extent  of  relief  granted,  526-527. 
of  foreclosure ;  of  mortgage  pledged  or  collaterally  assigned,  349. 

of  one  note  will  not  bar  action  on  others,  346. 

voidable,  at  instance  of  infant  defendant,  for  whom  guardian  ad 
litem  was  not  appointed,  269. 
of  sale  generally,  533. 
of  second  sale;  for  subsequent  installment  due,  581. 

after  sale  of  part  for  former  installment,  581-583. 
of  surrogate's  court ;  preference  over  legatee's  claims  in  distribution  of 

surplus,  873. 
on  application  to  strike  out  frivolous  plea,  532. 
on  referee's  report ;  form  and  contents ;  notice,  etc.,  524-526. 
plaintiff  entitled  to  no  contingent  personal  judgment  before  final,  527. 
prior  incumbrancers ;  when  barred  by,  487. 
priority  of  second  mortgage,  869. 

of  unrecorded  mortgage,  868. 
distribution  of  surplus,  869. 


GENERAL    INDEX.  1961 

References  are  to  Sections. 
JUDGMENT— ro;;/nn<rJ. 

provision  as  to  letting  purchaser  into  possession,  723. 
recovered  before  foreclosure.     See  Judgment  for  Deficiency. 

effect  where  creditor  not  party  to  foreclosure,  11. 
redemption  by  creditor;  costs,  1011. 
relief  to  conform  to  prayer  in  complaint,  354. 
sale  under;  effect  of,  14. 

set  aside  for  mistake  in  description  of  premises  in  foreclosure,  432. 
should  determine  rights   and   liabilities   of   all  the  parties,  20. 
should  direct  payment  of  pledgee's  claim,  in  foreclosure  by  him,  106. 
direct  referee  to  report  deficiencj',  734. 
fix  order  of  liability  for  deficiency,  223. 
require  referee  to  specify  amount  of  deficiency  in  report  of  sale, 

222. 
specify  order  of  liability  for  deficiency,  253. 
statutory  limitation  for  docketing,  754. 
Strict  Foreclosure.     See  Strict  Foreclosure. 
discretion  as  to  sale  of  property,  etc.,  972. 
form,  contents,  etc.,  976. 
setting  aside,  opening,  etc.,  978. 
subsequent  to  prior  equitable  mortgage,  330,  331. 
surplus ;  distribution ;  order  of  priority,  874. 

priority  of  executory  contract  to  execute  mortgage,  874. 
of  liens  generally,  859. 
over  dower  rights,  873. 
satisfaction  in  order  of  priority,  873. 
tax  title  holder;  when  barred,  488. 
upon  debt  secured;  pending  foreclosure,  310. 
upon  foreclosure  of  contemporaneous  mortgages,  where  all  mortgagees 

were  not  made  parties,  is  defective,  116. 
void;  purchaser  under  at  foreclosure  sale  obtains  no  title,  721. 
when  only  part  due  at  time  of  filing  complaint,  527. 

including  all  due  at  date  of  decree,  527. 
when  senior  and  junior  mortgages  foreclosed  in  one  action,  333. 
when  senior  mortgagee  made  party.  2iZ2. 

where   widow's    dower   admeasured    in   premises   mortgaged   by   hus- 
band alone,  156. 
will  not  affect  owner  of  equity  of  redemption  not  made  a  party,  147. 
JUDICIAL   NOTICE. 

of  county  in  which  lands   are  situated,  359. 
JUDICIAL  SALE.     See  Sale. 

JUNIOR   ENCUMBRANCERS.     See    Subsequent   Incumbrancers. 
barred  by  sale  when,  693. 
right  to  be  served  with  notice  of  sale.  923. 
right  to  surplus  on  cross-bill,  385. 
JUNIOR  MORTGAGEE.     See  Subsequent  Encumbrancers. 
entitled  to  share  in  surplus,  890. 


1962  GENERAL    INDEX. 

References  are  to  Sections. 

JUNIOR  MORTGAGEE— conimweJ. 
barred  by  sale,  when,  693. 

cannot  compel  foreclosure  by  senior  mortgagee,  332. 
right  to  foreclosure  against  purchaser  under  senior  mortgage,  14. 
right   to   make   himself   party   to    foreclosure   by   prior   mortgagee   by 
cross-bill,  385. 
JURISDICTION. 

Equitable.     See   also   Equity,   Courts   of. 
suit  by  trustee,  7. 

to  enforce  contract  to  execute  mortgage,  331. 
Federal  courts,  28. 

bankruptcy   court   has   jurisdiction    in   foreclosure   against   bank- 
rupt, 28. 
concurrent  jurisdiction   of  bankruptcy  and   slate  courts,  28. 
foreclosure    of    railroad    mortgage,    25. 
Georgia,  27. 
of   circuit   court   of    United    States   to    enter   personal   judgment    for 

deficiency,  72>7. 
of  court  of  appeals  to  decide  appeal  from  order  for  distribution  of 

surplus,  911. 
of  courts  of  equity,   18. 

cannot  be  deprived  of  jurisdiction  by  agreement  of  parties,  21. 
effect  of  commencement  in  federal  court  on  jurisdiction  of  state 

court,  28. 
federal  courts,  28. 
Alabama  code,  29. 
inherent,  18. 
Iowa    code,    24. 
Louisiana  rule,  23. 
pact  de  non  aliciido,  23. 
state  courts,  21. 

circuit  courts  of   ^lissouri,  22. 
county  courts,  21. 

no  power  to  reform  mortgage,  21. 
of  purchaser  at  foreclosure  sale,  611,  664. 
of  state  court  to  decree  foreclosure  as  affected  by  pendency  of  suit 

in  Federal  court,   1163. 
Pennsylvania,  25. 

power  in  mortgage  does  not  take  away,  311. 
South   Carolina,  26. 
stipulation   in   mortgage   for  sale   in   specified   manner,   18. 

effect  of  stipulation,  18. 
to  confirm  sale,  661. 
to  enter  personal  judgment  against  cestui  que  trust  not  conferred  by 

unauthorized  appearance  of  trustee,  271. 
to  foreclose  mortgage,  18. 

inherent  original  jurisdiction  of  courts  of   equity,   18. 


GENERAL   INDEX.  1963 

References  are  to  Sections, 
JURISDICTION— continued. 
transitory  action,  36. 

New  York  supreme  court,  21. 
where  all   the  property   is   situated   in   another   state,  34. 
where  court  in  two  states,  33. 
where  property  situated  in  two  states,  21,  33. 
where  the  parties  reside  in  another  state,  35. 
no  personal  service,  35. 
JURY. 

trial  by,   19.     See  Trial. 
Pennsylvania  doctrine,   19. 
when  allowable,  19. 
JUSTICE  OF  THE  PEACE. 

may  make  appraisement,   540. 
LACHES. 

bars  redemption  when,  1248. 

bill  to  redeem  dismissed  when,  1224. 

by  owner  of  property;  estopped  by  silence  at  sale,  458. 

doctrine  of ;  not  recognized  in  ^Mississippi,   1248. 

extinguishes  right  of   redemption,    1053. 

in  applying  to  have  foreclosure  sale  set  aside,  623. 

in  applying  to  have  sale  by  advertisement  set  aside,  944. 

in  foreclosing,  446. 

set-oif  of  loss  by  depreciation  in  value,  446. 
in  objecting  to  sale,  648. 

setting  aside  sale,  648,  649. 
of  mortgagee;  as  affecting  right  to  appointment  of  receiver,  803. 
■sale  not  set  aside  to  protect  party  against  consequences  of  his  own 
laches,   620. 
LAND. 

included   in   judgment  but  not   in  complaint;    will   not  pass   to  pur- 
chaser, 692. 
LANDLORD  AND  TENANT. 

conclusiveness    of    statutory    foreclosure    on   tenant,   950. 
costs;   right  of  tenant  under   recorded  lease  to  have  taxes,   1016. 
fixtures;  on  lands  leased  for  term  of  years,  492. 
right  as  between  tenant  and  mortgagee,  492. 
interest  in  surplus  moneys  of  lessee  for  years,  885. 
mortgage;   of  leasehold  interest,  517. 

allowance   of   rent   charges  paid  by   mortgagee   on   reference   to 

compute  amount  due,  517. 
of   lease   for   years;   purchaser   at    foreclosure    sale   becomes    as- 
signee, 683. 
possession  by  tenant;  appointment  of  receiver,  814. 

as   affecting  right  to   appointment   of   receiver,  804. 
receiver;  power  to  lease  premises,  788. 


1964  GENERAL   INDEX. 

References  are  to  Sections. 

LANDLORD  AND  TEKA^T— continued. 
Tenant. 

ejected  after  foreclosure,  may  sue  lessor  for  damages,  if  there  is 

no   surplus,    177. 
in  possession   under  hostile  claim,   723. 

not  summarily  dispossessed  to  give  possession  to  purchaser  at 
foreclosure  sale,  723. 
may  be  ejected,   when,   177. 
necessary  defendant,  177. 
not  made  a  party ;  entitled  to  all  crops  grown  before  expiration 

of  term,   177. 
right  to  remove  fixtures  not  prejudiced  by  foreclosure  before  end 
of   term,    177. 
writ  of  assistance;  to  dispossess  tenant,  730. 
LAW,  ACTION  AT  ON  BOND. 

prevented  by  suit  to  foreclose,  273. 
leave  to  sue,  273. 
LAW  OF  PLACE. 

governing  validity  of  mortgage  as  to  usury,  410. 
LAW,  SUIT  AT. 

for  deficiency,  736. 

Lawyers'   Title   Guarantee   Company's   search   not   allowed   for,    1021. 
LEASE.  See  Landlord  and  Tenant. 

assignment  of  as  additional  security  as  payment,  469. 
lessor  not  necessary  party  to  foreclose,  212. 
outstanding  lease  must  be  shown  in  notice  of  sale,  545. 
LEASE-HOLD. 

house  removed  from,   following  property,  303. 
LEGACY.     See  Wills. 
LEGATEE.     See  also  Wills. 

a   necessary   defendant,   where   legacy  to  be  paid    from   proceeds   of 

premises,   164. 
cannot    foreclose,    when,    122. 

foreign ;  of  bonds  and  mortgage  may  foreclose,  126. 
of   infant;   lunatic,   idiot,   or  habitual   drunkard,   owner  of   premises, 

necessary  defendant,  174. 
of  money  to  be  paid   from  proceeds   of  mortgage,   should  be  made 

defendant,  on  foreclosure  by  e.xecutor,  122. 
of  mortgage  may  foreclose,  122. 

of    subsequent   incumbrancers,    not   necessary   defendants,    192. 
residuary   legatee  and   devisee   as  necessary   parties,    164. 
LESSEE. 

in  possession  necessary  defendant  on  foreclosure,  147. 
no  claim  on  surplus  moneys,  847. 
not  made  party  to  foreclosure,  588. 
right  to  redeem  not  affected,  588. 


GENERAL    INDEX.  1965 

References  arc  to  Sections. 

LETTING   PURCHASER   INTO    POSSESSION. 

provisions    for.   681.     See    S.\lk   Letting   into   Possession. 
LEX  LOCI. 

governing  validity  of  mortgage;   usury,  410. 
LICENSE. 

barred  by  sale  of  mortgaged  premises  when,  694. 
LIENS. 

consolidation  of,  1201. 
in    England,    1201. 
in   favor  of  plaintiflf  in   foreclosure,  right  to  plead  and  have  estab- 
lished, m. 
lienholders  are  necessary  parties  defendant,  136. 
mortgage  as,    1002. 

of  attorney ;  for  fees.    See  Costs,  1003-1010. 
on  surplus  moneys,  888. 

protection  of,  on  reference  to  ascertain  surplus,  902. 
of  mechanics,  858,  886. 

consideration  of   in   distribution  of   surplus,  858. 
determination  of  rights  by  referee  to  ascertain  suTplus   902 
distribution  of  surplus  ;  priority,  886. 
holder  may  set  up  usury  as  defense  in  foreclosure,  411. 
priority  of  mortgage ;  distribution  of  surplus,  870. 
subsequent  lienor  as  necessary  party,  178. 
subsequent  lienor  as  proper  party   defendant,    178. 
sufficiency  of  tender  to  discharge,  468. 
tacking,   1201. 
LEINORS. 

paying  moneys  to  protect  lien  claim  on  surplus,  85L 
LIFE  TENANT. 

surplus;    distribution,   861. 
LIMITATION. 

of  actions.     See  Statute  of  Limit.-vtions. 
acknowledgment  of   debt,  474. 
for  docketing  deficiency  judgment,  754. 

in  New  York,  754. 
foreclosure  of  trust  deed ;  West  Virginia  rule,  72. 
interest;  payment  by  purchaser  from  mortgagor,  474. 

effect  to  prevent  running  of  limitation   against   mortgagor's 

liability,  474. 
payment  by  life  tenant,  preserves  life  of  mortgage  as  against 
'  remainderman,  474. 

Michigan  rule,  72. 

new  promise  must  be  made  by  debtor  or  in  his  behalf,  81. 
may  be  express  or  implied,  81. 

promise  implied  by  unqualified  acknowledgment  of  debt,  81. 
where   foreclosure,   barred   by   limitation   of   remedy   for   the 
debt,  80. 


1966  GENERAL   INDEX. 

References  are  to  Sections. 

LIMITATION— con;nni<?(/. 
of  actions — continued. 

new  promise  must  be  made  etc. — continued. 

must  be  made  to  the  creditor  or  his  agent,  81. 
removes  bar,  81. 

sufficiency  to  prevent  bar  of  statute,  474. 
of  actions  in  equity,  act  by  analogy  to  rules  of  law,  78. 
of  foreclosure  actions  under  New  York  code,  72. 
as  a  complete  bar,  7i. 

as  affording  only  a  presumption  of  payment,  7Z. 
at  common   law,  72. 
can  be  pleaded  by  mortgagor's  grantee,  only,  when  it  could  have 

been  pleaded  by  mortgagor,  82. 
debtor's   absence  cannot  prevent,  78. 
enforcing  statutes  of,  in  equity,  7Z. 
partial  payment,  474. 

sufficiency  to  prevent  bar  of  statute,  474. 
payment  by  mortgagor  after  transfer,  474. 

effect  in  keeping  debt  alive,  474. 
prima  facie  evidence  of  payment,  7Z. 
purchaser  from  mortgagor,  474. 

bound  by  mortgagor's  previous  acknowledgment  of  debt,  474. 
removal  of  bar,  81. 

by  new  promise,  81. 
Statute  of.     See  Statute  of  Limitations 

bars  redemption  when,  1249.     See  Redemption. 
extinguishes  mortgage  when,  468. 
time  sufficient  to  raise  presumption  of  payment,  7Z. 
when  begins  to  run,  78. 

in  favor  of  mortgagor's  grantee,  not  until  some  hostile  act 

or  declaration,  82. 
in  mortgagor's   favor,   74. 

where  there  is  a  parol  agreement  as  to  time  of  payment,  68. 
when  complete,  78. 

lapse  of  time  which  would  bar  a  recovery  of  the  premise?,  79. 
not  because  the  debt  is  barred,  80. 
twenty  years'  uninterrupted  possession,  79. 
upon  limitation  of  debt,  80. 
when  not  complete  upon  limitation  of  debt,  80. 
when   right  to  foreclose  accrues,   78. 

will   not  run   while   relation   of   mortgagor   and   mortgagee   con- 
tinues, 74. 
LIQUIDATED  DAMAGES.     See  Damages. 
LIS  PENDENS. 

abrogated  by  statute  in  Maine,  364. 

affects   only  proper  parties  and  privies,  374. 


GENERAL    INDEX.  1967 

References  are  to  Sections. 
LIS  PENDENS— fo»;j;nr<7(f. 

amendment   of   complaint,   379. 

new  notice,  379. 
as  notice  to  tenant  of  mortgagor,  367. 

becomes  void  or  dormant  by  negligence  in  prosecuting,  380. 
cancelation ;  filing  of  new  lis  pendens.  381. 

for   failure  to  serve   summons,  380. 
change  of  venue  as  affecting,  367. 
common  law  doctrine,   151. 
contents  of  notice,  369. 
continues  until  final  decree,  367. 
created  by  service  on  one  defendant,  366. 
definition,  364. 

description    of    mortgage,    369. 
description  of  premises,  370. 
diligence  in  prosecution  requisite,  367. 
duration  and  extent,  367. 
effect  of  decree  on,  381. 
effect  of  notice ;  generally,  374. 

effective  as  to  third  persons   from   earliest  service,   Z66. 
and   from   service   on   any   defendant,   366. 

upon  conveyances  subsequently  recorded,  376. 

upon  holders  of  unrecorded  conveyances,  376. 
entire  accuracy  not  requisite,  369. 
function;  maxim;  pendente  lite  nihil  innovetitr,  365. 
how    shown    on    motion    for    order    of    referee    to    compute    amount 

due,    505. 
in    action    for   dissolution   of    partnership ;    inoperative   against   prior 

mortgage,  375. 
in  real  actions  affects  all  persons,  367. 

when  becomes  operative,  367. 
is  as  effective  against  a  valid  transfer  as  an  injunction,  374. 
is  constructive  notice  to  subsequent  purchasers,  374. 
loss  or  improper  entry  will  not  defeat,  374. 
misnomer;  effect  of,  369. 
modern  doctrine  defined,  365. 
must  correctly  describe  property,  379. 

New  York  doctrine,  history  of,  368. 
statutory  provisions,  152. 
nature  and  functions,  365. 

necessity  for  service  of  summons  within  sixty  days,  380. 
no    extra   territorial    application,   367. 

not  affect  parties  asserting  adverse  rights  to  defendant,  367. 
not  effective  until  complaint  filed,  190,  366. 
notice;  cancelation,  381. 

defective ;   amendment,  379. 

in  original  suit,  constructive  notice  of  cross-suits,  363. 


1968  GENERAL    INDEX, 

References  are  to  Sections. 

LIS  PENDENS— ro;!/j)n<^(i. 
notice — continued. 

not  invalidated  by  defect  where  parties  not  prejudiced,  379. 

not  to  tenant  of  one  not  a  party  367. 

only  of  contents  of  summons  and  complaint,  367. 

presumed  from  appearance,  366. 
not  operative  until  service,  366. 
nunc  pro   tunc  order,  366. 

not  affect   rights   of   intervening  creditor,  366. 
object,  to  keep  subject  in  controversy  until  final  judgment,  365. 
omission  to  file;   effect,  377. 

persons  affected  by,  377. 
omitted  or  defective ;  effect  on  parties,  153. 
operates   as  notice,  365. 
origin  of  phrase,  364. 
proof  of  filing ;  permitted  nunc  pro   tunc,  378. 

defective  affidavit;  may  be  amended,  378. 

defective  affidavit  will  not  invalidate  judgment,  378. 

necessity  and  sufficiency  of,  378. 

who  may  make,  378. 
purchasers  concluded  though  not  parties,  365. 
purely   a   rule  of  practice,   365. 
purpose  of,  377. 
recording  and  indexing,  373. 
renders  subsequent  transfers  invalid,  374. 
right  of  plaintiff's   attorney  to  sign,  372. 
right  to  file,  not  dependent  on  judicial  discretion,  372. 
rule  founded  upon  public  policy  and  necessity,  365. 
rule  necessary  to  prevent  fraudulent  transfer,  365. 
statement  as  to  place  of  recording,  369. 
statutory  notice  not  effective  until  filed,  366. 
subsequent  incumbrancers ;   who  are,  375. 
substantial  compliance  with  statute  sufficient,  379. 
time  of  filing,  371. 

when  becomes  operative.  366. 
what  parties  bound  b)',  374. 
when  defendant  must  file,  372. 
when  notice  of  to  be  filed,  371. 

a  nullity  when,  371. 

before  issuance  of  summons  void,  371. 

New  York  rule,  371. 
when  terminates,   367. 
who  are  subsequent  incumbrancers,  375. 
who  may  file  and  how,  372. 
with  whom  notice  to  be  filed.  368. 
writ  of  error,  when  effective,  366. 


GENERAL    INDEX.  1969 

References  are  to  Sections. 

LOAN  ASSOCIATIONS. 

mcrrtgage;   computing  amount   due;    fines   and   dues,  515. 
LOAN  COMMISSIONERS. 

sale  by;  discretionary  powers,  605. 

concurrence,  605. 
LORD  BACON. 

ordinances.     See  Lis  Pendens,  364. 
LUNATICS.     See  Insane  Persons. 
MALICE. 

not  a  defense  against  assignee  of  mortgage,  412. 
MARRIED   WOMAN.     See  Dower;   Husb.-vnd  and  Wife. 

equitable  right  to  surplus,  878. 

estoppel  against,  in  action  to  foreclose,  454. 

execution  of  mortgage  under  duress,  438. 
defense  to  foreclosure,  438. 

may  purchase  at  foreclosure  sale,  609. 

service  on  by  delivery  to  husband   in  community  property,  628. 
MASTER  AND  SERVANT. 

application   on  mortgage   of    wages   earned   by   mortgagor,   473. 
MATURITY. 

of  debt,  accelerated  by  neglect  to  pay  installments,  327,  328, 
MAXIMS. 

cessante  ratione,  cessat  quoque  lex,  371. 

ex  dolo  nialo  non  oritur  actio,  414. 

in  pari  delicto  portior  est  conditio  defendentis,  401. 

pendente  lite  nihil  innovetiir.     See  Lis  Pendens. 
MECHANIC'S    LIEN. 

determining  rights  on  reference  to  ascertain   surplus,  902, 

distribution  of  surplus  moneys;  priority,  858,  886. 

holder  may  set  up  usury  as  defense  in  foreclosure,  411. 

notice  must  be  filed  before  lis  pendens,  185. 

owner  having  assigned,  not  a  necessary  defendant,  186. 

peculiar  to  American  law,  185. 

priority  of  mortgage;  distribution  of  surplus,  870. 

subsequent  holder  of,  necessary  defendant,  185. 

wholly  statutory,  185. 
MEMORANDUM.     See  Sale. 

of  sale,  611. 
MERGER. 

doctrine  of,  304. 

equity  does  not  favor,   1050. 

not  a  defense  against  assignee  of  mortgage,  412. 

of  mortgage  in  equity  of   redemption,   1050. 

takes  place   when,    1050. 
METHODS  OF  FORECLOSURE.     See  Foreclosure;   Methods  of. 
MINORS.     See  Guardian  and  Ward;  Infants. 
Mortg.  Vol.  II.— 124. 


1970  GENERAL    INDEX. 

References  are  to  Sections. 

MISCONDUCT. 

grounds    for   setting    aside    sale,    645.      See    Sale;    Setting    Aside; 
Grounds  for. 
MISREPRESENTATION. 

as  ground  for  redemption,  1155. 
MISNOMER. 

in  lis  pendens,  369. 
MISSOURI. 

jurisdiction  of  circuit  courts  of,  22. 
MISTAKE. 

as  defense;  in  foreclosure  generally,  430,  434. 

against  assignee ;  reformation,  412. 
assumption  of  mortgage ;  parol  evidence  of  mistake,  744. 
as  to  quantity  of  land,  434. 

correction  in  foreclosure,  434. 
as  to  title,  433. 

correction   in   foreclosure,  433 
corrected  as  against  whom,  431. 

excusable ;  setting  aside  foreclosure  sale  for,  650.    See  S.\le. 
in  date  of  mortgage  will  not  effect  notice  of  sale,  928. 
in   decree;    in   describing  property,   711. 

correction  by  amendment,  711. 
in  deed  in  foreclosure;  embracing  premises  released,  710. 
in   describing  note   or  bond   in   complaint,   340. 
in  description  of  premises  in  mortgage,  710. 

correction  in  favor  of  purchaser  at  foreclosure  sale,  710. 
in  docketing  judgment,  does  not  affect  lien  on  surplus,  871. 
in  execution  of  note  and  mortgage;  cross-bill  showing,  423. 
in  inserting  clause  reserving  life  estate,  902. 

correction  on  reference  to  ascertain  surplus,  902. 
in  mortgage;   description  of  premises;   omission  of   portion   intended 
to  be  mortgaged,  711. 

protection  of  purchaser  in  possession,   711. 
in  name  of  mortgagee,  need  not  be  alleged  in  complaint,  338. 
in  notice  of  sale  under  statutory  foreclosure.     See  Statutory  Fore- 
closure. 
in    recording   mortgage;    effect,   398. 
judgment  and  sale  set  aside  for,  432. 
may  be  corrected  as   against  whom,  431. 
mortgage  on  property  of  another,  710. 
of  defendant,  as  to  his  liability,  647. 

setting  aside  sale  for,  647. 
of  purchaser  at  foreclosure  sale;  as  to  law,  679. 

application  to  be   relieved   from  completing  purchase,  679. 
relief  on   foreclosure,   423. 
remedies    for   correcting,   432. 


GENERAL    INDEX.  1971 

References  are  to  Sections. 
MISTAKE — continued. 

setting  aside  foreclosure  sale  for,  627,  644. 
after  confirmation,  662. 
statutory  foreclosure,  943. 
MONEY  PAID. 

fines,  to  loan  associations ;  recovery,  515. 
"MORE  OR  LESS." 

omission  of  in  foreclosure  proceedings  and  deed,  695. 
efifect  of,  695. 
MORTGAGE. 

acceptance  of  new  mortgage  for  old  as  payment  or  satisfaction,  469. 

after-acquired  title;  inures  to  benefit  of  mortgagee,  451. 

alteration ;    defense   of,   399. 

a  mere  security  for  debt ;  efrect  of  doctrine,  963. 

as  controlling  allegations  of  complaint,  340. 

as  lien  upon  land  or  surplus  for  costs,  1002. 

as  part  payment  for  services  of  marriage  broker;  validity  of,  406. 

as  security  for  goods  to  be  furnished,  405. 

actual  consideration,  405. 
as  to  what  constitutes,  1029. 
assigned  without  the  note  or  bond,  is  held  at  the  will  and  disposal  of 

the  bondholder,  114. 
assignee  of,  proper  party  on  redemption,  when,  1234. 
Assignment  of. 

assignee  takes   subject  to  equities,  418. 
on  redemption,  1035,  1190. 
not  a  right,  1035. 
assumption  of.     See  Assumption. 

attorney's  fees  and  taxes  to  be  paid  as  part  of,  when,  470. 
by  infant,  for  purchase  money;  foreclosure,  396. 

merely  voidable ;   disaffirmance,  395. 
by  tenant  in  common,  140. 

can  be  enforced  only  after  partition,  140. 
will  not  afifect  rights  of  co-tenants,  140. 
cancelation  of  as  payment,  476. 

consideration;   illegal  or  void;  avoids  mortgage,  406. 
defense  to  action  on  note,  406. 
want  of,  as  a  defense,  401. 
what  sufficient,  403. 
conveying   several   distinct   parcels,   one   instrument,    when,   308. 
debt  payable  in  instalments,  condition  continuing,  78. 
deed  absolute  in  form  with  defeasance  in  when,  1029. 
duress ;  as  defense  in  foreclosure,  436-439. 
early   ideas    regarding;   effect,  963. 
equality  of  mortgages;  when  tried  on  foreclosure,  487. 
equitable;  deposit  of  title  deeds,  330. 

omission  of   statutory   formalities,   331, 
to  secure  purchase  money,  329. 


1972  GENERAL    INDEX. 

References  are  to  Sections. 

MORTGAGE.— continued. 

execution  and  record;  defective,  398. 

defense  in  foreclosure,  398. 
execution  of ;  how  put  in  issue,  394. 
extension  of  time  of  payment,  70. 

Indiana  rule,  70. 
extinguished ;  by  payment ;   discharge ;   release,  etc.,  468. 

by  assignment  to  purchaser  of  premises,  304. 
fraud ;  false  representations,  420. 

relief  from,  on  foreclosure,  420-429. 
fraudulent  as  to  creditors,  not  a  defense  on  redemption,  1229. 
given  to  avoid  revenue  laws ;  cannot  be  avoided,  406. 
given  to  prevent  prosecution  of  husband  of  mortgagor;  validity  of, 

406. 
given  to  secure  valid  and  invalid  note ;   validity  of,  407. 
illegal  consideration ;   validity,  406. 
indemnifying  mortgagee  as  endorser  of  note,  67. 

payment  of  note  by  mortgagee  as   condition  precedent  to   fore- 
closure, 67. 
invalid;  sale  under  carries  no  title,  691. 
is  a  security,  not  a  title  in.  the  property,  89. 
loss  of  as  affecting  power  of  sale,  324. 
may  be  assigned,  126. 

by  foreign  persons  representative,  for  foreclosure,   126. 

to  mortgagor's  wife  without  afifecting  its  validity,  134. 
may  cover  two  separate  parcels,  308. 
merely  a  collateral  security,  50. 
mistake ;  correction  on  foreclosure,  430,  434. 
negotiability;    assignability,   415,   418. 

not  affected  by  marriage  of  a  feme  sole  mortgagee  to  mortgagor,  134. 
not  extinguished  by  convej'ance  of  the  premises  to  mortgagee,  after 

assignment  of  the  debt  by  the  latter,  306. 
omission  of  name  of  mortgagee;  delivery,  331. 
on  property  out  of  state,  3. 

agreement  as  to  method  of  foreclosure,  3. 
on  two  parcels  of  land,  966. 

strict  foreclosure  on,  966. 
overdue  secured,  no  defense  on  redemption,  1230. 
ownership  in  dispute,  or  doubtful,  206. 

other   claimants    desirable   defendants,   206. 
parol  contract  to  execute;  statute  of  frauds,  331. 
partial   illegal   consideration ;   validity,   407. 
payable  in  installments,  54. 

when   right   of    action   accrues,   54. 
payment  before  judgment,  363. 

dismissal  of  complaint  on,  363. 
premises,  value  of  are  to  be  considered  when,  853. 


GENERAL    INDEX.  1973 

References  are  to  Sections. 

MORTGAGE— coyttiuucd. 

provision    for   appointment   of   receiver;   validity,   762. 
purchase  money;  fraud  as  a  defense  on  foreclosure,  422,  424. 
railway,  1234. 

liability  for  income  under,  1234. 
recording,  time  and  mode,  398. 
rendered  invalid  by  duress;  necessity  of  mortgagee  participating  in 

duress,  436. 
rights  as  to  foreclosure  as  between  senior  and  junior  mortgagees,  332. 
securing  future  advances,  404. 

actual  consideration  may  be  shown,  404. 
securing  several  notes,  55. 
failure  to  pay   one,   55. 
when  right  of  action  accrues,  55. 
to  defraud  creditors,  401. 

mortgagor  can  set  up  want  of  consideration,  401. 
to  secure   future   advances,  404. 

consideration  on  foreclosure,  404. 
undue  influence  as  a  defense  in  foreclosure,  435. 
usury,  as  a  defense  in  foreclosure,  409. 

will  not  be  enforced ;  where  foreclosure  would  defraud  creditors,  296. 
with  power  of  sale.     See  Power. 

with  provision  for  attorney's  fee  secures  same,  1003. 
MORTGAGEE. 

after  mortgagor's  death,  may   foreclose   against  heirs,  276. 
allowed  benefit  of  assumption  of  mortgage  by  purchaser,  246. 

theories  of  law,  246. 
cannot  release  part  of  the  premises  by  joining  in  a  deed  with  mort- 
gagor, 140. 
chargeable  with  actual  rents  received  on  redemption,  1214. 
compelling  junior  to  redeem,  1236. 
contemporary,   204. 

necessary  defendants,  204. 
conveyance  by,    1062. 

effect  on  right  of  redemption,   1062. 
dying  pending   foreclosure,  effect,    122. 
effect  of  omission  of  name  in  mortgage,  331. 
election  by,  that  debt  become  due,  60. 

necessity  for  affirmative  act,  60. 
election  to  declare  whole  sum  due,  61. 

effect  of  payment  of  taxes  after  default,  61. 
entitled  to  interest  on  taxes  paid,  516. 
guaranteeing  payment,  274. 

may   be    sued   by   assignee    during    foreclosure,    without   consent 
of  court,  274. 
has  burden  to  prove  that  a  conveyance  to  him  of  the  premises  was 
voluntary  and  fair,  305. 


1974  GENERAL   INDEX. 

References  are  to  Sections, 

MORTGAGEE— co»?!»Mf  J. 

holding  two  or  more  mortgages  on  the  same  premises,  can  not  fore- 
close by  separate  actions  at  the  same  time,  117. 
in  possession,  appointment  of  receiver,  812-815. 

entitled  to  rents  and  profits,  814. 

diligence   required  of,   1206. 

Massachusetts    rule,    1206. 

must  account  on  redemption,  1206.    See  Redemption. 

not  liable  for  not  leasing  differently,  1206. 

not   liable   to   personal  judgment,   741. 
independent ;  necessary  party  to   foreclosure  by  holder  of  note,  205. 
interest  of  cannot  be  cut  off  by  foreclosure  by  subsequent  mortgagee, 

332. 
is  a  mere  lienor  until  conveyance  upon  sale,  13. 
joinder  of,  in  bill  to  redeem,   1233. 
joint   or  several,   203. 

refusing  to  join  as  plaintiffs,  necessary  defendants,  203. 
junior,  332. 

cannot  maintain  suit  to  cut  off  interest  of  prior  mortgagee,  332. 
junior's  right  to  redeem,    1105,   1159. 

Iowa   doctrine,    1159. 
liable  for  damages  and  rents  when,   1214. 
may  be  made  defendant  in  deficiency  judgment  when,  206. 
may  compel   grantee,   assuming  mortgage,   to  perform   his   covenant, 

242. 
may  foreclose,  although  administrator  of  mortgagor's  estate,  90. 
may  purchase  at  foreclosure  sale,  when,  609. 
may  purchase  premises  from  mortgagor,  305. 
must  answer  for  surplus  if  he  bids  more  than  amount  due,  892. 
must  participate  in  duress  to  avoid  mortgage,  436. 
necessity   for   examining   records    for  subsequent   incumbrances,  852. 
not  chargeable  with  rents,  when,  1206. 

chargeable  with,  when,  1214. 
not  liable  for  wrongdoing  by  receiver,  791. 

objection  that  mortgagee  was  not  made  partj^  must  be  taken  by  demur- 
rer to  avoid  waiver,  389. 
owning  contemporaneous  mortgages  which  are  equal  liens,  may  unite 
as    co-plaintiffs,    116. 

upon  refusal,  any  one  or  more  may  foreclose,  116. 
payment  of  tax  lien  not  allowed  to.  when,  1020. 
payment  to  by  mortgagor  after  assignment;  validity  of,  416. 
possession  by  may  be  retained  until  mortgage  is  satisfied,  85. 
purchase  by  at  own  sale ;  who  may  impeach,  320. 
purchase  by  bars  redemption  when,  1253. 
rents  and  profits ;  rights  to,  795. 
right  of  mortgagee  to  sue  for  use  of  assignee,  92. 


GENERAL    INDEX.  1975 

References  are  to  Sections, 

MORTGAGEE— coiitiiiited. 

right  to  purchase  at  own  sale,  320. 
with  mortgagor's   consent,  320. 
right  to  recover  for  taxes  paid  after  foreclosure  commenced,  516. 
sale  by  after  parting  with  interest;  validity,  916. 
sale  of  equity  of  redemption  to.     See  Redemption  ;  Equity  of. 
under  contemporaneous  and  equal  mortgages,  may  unite  as  co-plaintiffs 

in  action  to  forclose,  100. 
waiver  of  election  that  debt  become  due,  61. 
when   a  plaintiff,   89,   90. 

when  owners  in  severalty,  any  one  or  more  may  foreclose,  99. 
MORTGAGOR. 

a  married  woman,  with  separate  estate,  necessary  defendant,   154. 
a  necessary  defendant,  although  under  contract  to  sell,  144. 
a  surety  for  grantee  assuming  mortgage,  243. 
agreeing  to  pay  debt,  227. 

liable   for   deficiency,   227. 
all  mortgagors  are  necessary  defendants,  137. 
allegations  against  in  complaint,  341.     See  Complaint. 
always  a  desirable  defendant,  137,  139. 
amount  to  be  paid  by  on  redeeming,  1192. 

can  not  revive  the  debt  against  his  grantee,  after  once  barred  by  lim- 
itation, 82. 
conveying   premises    fraudulently,   is   a   necessary   defendant   in    fore- 
closure, 145. 
Death  of. 

as  affecting  power  of  sale,  324. 
effect  on  foreclosure,  44,  280,  740. 
effect  on  judgment  of  foreclosure,  740. 
effect  on  lien  of  mortgage,  280,  740. 
defect  in  name  of  as  affecting  notice  of  sale,  928. 
easements  used  by  pass  under  sheriff's  deed  as  appurtenance,  683. 
entitled  to  redeem  without  paying  rent,  when,  1206.     See  Rents  and 

Profits. 
entitled  to  rents  and  profits  when,  1192.     See  Rents  and  Profits. 
having  conveyed  premises,  is  a  necessary  party  while  conveyance  un- 
recorded,   137. 
by  deed  delivered  in  escrow,  a  necessary  party,  145. 
by  deed  intended  only  as  a  collateral  security,  a  necessary  defend- 
ant, 145. 
heirs  of,  when  necessary  defendants,   161. 
holding  any  equitable  interest,   a  necessary  party,   143. 
holding  tax  lien,  proper  defendant,   196. 
holds  title  and  possession  until  conveyance  upon  sale,  13. 
illiteracy  and  negligence  of,  as  defense  in  foreclosure,  400. 
improvement  of  mortgaged  premises  by  as  consideration   for   exten- 
sion of  time  of  payment,  467. 


1976  GENERAL    INDEX. 

References  are  to  Sections, 
MORTGAGOR— continued. 

in  foreclosure;  necessary  party;  allegations  against,  341. 

insanity  of,  as  a  defense  in  foreclosure,  397. 

insanity  of  as  affecting  sale,  325. 

may  convey  premises  to  mortgagee.  305. 

may  cut  timber  from  premises,  302. 

may  object  to  omission  of  wife  as  a  defendant,  136. 

objection  to  be  taken  by  answer  or  demurrer,  136. 
may  purchase  at  foreclosure  sale,  609. 
maj'  show  the  actual  amount  of  rents  and  profits  in  action  to  redeem, 

1214. 
mistake,  correction  of  as  against  in  foreclosure,  431-434. 
must  do  equity,   1192. 
necessary  defendant;  in  strict  foreclosure,  137. 

in  foreclosure  by  advertisement,   137. 
no  longer  owning  equity  of  redemption,  not  necessary,  138. 
not  tenant  at  will,  so  as  to  preclude  his  adverse  possession,  75. 
payment  made  by  to  mortgagee  without  notice  of  assignment ;  validity 

of,  416. 
personal   representatives   of,   necessary  defendants   in   foreclosure  by 

advertisement,  in  New  York,   162. 
possession  during  period  of  redemption,  1071. 

constitutionality  of   statute  allowing,   1071.     See   Constitutioxal 
Law. 
rents  and  profits ;  right  to  758,  790,  795. 
right  to  avoid  effects  of  void  foreclosure,  701. 
right  to  be  served  with  notice  of  sale,  921. 
right  to  notice  of  entry  of  deficiency  judgment,  735. 
right  to  purchase  at  foreclosure  sale  under  power,  320. 
right  to  redeem  one  parcel  where  property  is  sold  in  parcels,  1180 
right  to  show  failure  of  consideration,  401. 
still  owning  equity  of  redemption,  a  necessary  party,   137. 
still  owning  part  of  the  premises,  a  necessary  party,   140. 
under  contract  to  sell  premises,  is  a  necessary  defendant,  137. 
when  may  be  let  in  to  redeem,  1070. 
who  has  sold  equity  of  redemption,  may  be  made  a  defendant  on  his 

own  application,  138. 
widow  of,  a  necessary  defendant,  155. 
wife  of,  a  necessary  defendant,  155. 

having  made  grant  of  dower,  still  a  necessary  defendant,  155. 

not  a  necessary  defendant  where  dower  rights  abolished  by  statute, 
155. 
MOTION. 

for  change  of  venue,  32. 

for  judgment;  requisites  and  where  and  when  made,  524. 

notice;  necessity  and  sufficiency  of,  525. 
for  order  of  reference  to  compute  amount  due,  502-506. 

notice  of  proceedings  on  reference,  502  et  scq. 


GENERAL    INDEX.  1977 

References  arc  to  Sections. 

MULTIFARIOUSNESS. 

bill  to  redeem,  1219.     See  Redemption. 
MUTUAL  PROMISES. 

consideration  for  agreement  to  extend  time  of  payment,  467. 
NAME. 

misnomer  in  lis  pendens,  369. 

of  mortgagee  omitted ;  effect,  331. 
NEBRASKA. 

right  of  foreclosure  accrues  in  when,  38. 
NEGLIGENCE. 

as  defense  to  foreclosure,  400. 

in  objecting  to  sale  and  in  setting  aside  sale,  648,  649. 

sale  not  set  aside  to  protect  party  from  consequences  of  his  own  laches, 
620. 

surprise  due  to;   sale  not  set  aside  for,  644. 
NEW  HEARING. 

on  reference,  523. 
NEW  JERSEY. 

action  for  debt  can  not  be  maintained  until  after  foreclosure,  12. 
NEW  PROMISE.     See  Limitations. 
NEW  YORK. 

doctrine  in  as  to  agreement  regarding  methods  of  enforcing  mortgage, 
3. 

foreclosure;  effect  of  pendency  of,  on  judgment  in  action  on  note  or 
bond,  393. 
form ;  requisites,  etc.,  of  complaint,  342. 
necessary  averment  as  to  prior  action  at  law,  347. 
NEW  YORK  CITY. 

custodian  of  money  paid  into  court,  363. 
NEWSPAPER. 

for  publishing  notice  of  sale ;  sufficiency  of,  549. 
NISI.    See  Rule  Nisi. 

non-delivery  of  mortgage  as   a  defense  to  foreclosure,  394. 
NON-RESIDENTS. 

defendants.     See   Parties. 
NOTES. 

as  controlling  allegations  of  complaint,  340. 

description  of  in  complaint  in  foreclosure,  340. 

effect  of  default  in  payment  of  one,  327,  328. 

foreclosure,  complaint ;  necessity  of  naming  maker,  340, 
imperfect  description,  340. 

payable  on  demand,  344. 

necessity  of  alleging  demand,  344. 

secured  by  mortgage ;  assignment,  412. 
defenses  against  assignee,  412. 
transfer;  foreclosure;  defenses,  416,  417. 


1978  GENERAL    INDEX. 

References  are  to  Sections. 
NOTES — continued. 

several  secured  by  same  mortgage,  averments  in  complaint  to  foreclose, 

346. 
valid  and  invalid ;  mortgage  given  to  secure,  407. 

enforcement,  407. 
with  provision  for  attorney's  fees,  1008. 

as  making  fee  lien  on  land,  1008. 
NOTICE. 

for  trial;  to  all  defendants  who  have  appeared,  530. 
judicial;  of  county  in  which  lands  situated,  359. 
in  proceedings  to  establish  right  to  surplus,  894. 

who  entitled,  895. 
in  sale  under  school  board  mortgage,  1029. 
irregularity  in  posting  will  not  defeat  confirmation,  660. 
must  be  annexed  to  published  summons  of  order  of  publication,   in 

New  York,  265. 
of  adjournment  of  sale;  publication,  607. 

need  not  describe  land  to  be  sold,  607. 
of  appearance  by  defendant;  sufficiency  a  question  for  the  court,  271. 
of  appointment  of  receiver;  necessity  for,  771. 
of  assignment ;  want  of  not  a  defense  against  assignee  of  mortgage, 

412. 
Of  Election. 

that  whole  debt  becomes  due.     See  Foreclosure;  Election. 

to  foreclose  for  overdue  installment,  328. 
of  filing  report  of  sale;  necessity,  614. 
of  intention  to  redeem,  1188. 
Of  Lis  Pendens. 

before  issuance  of  summons  a  nullity,  371. 

when  to  be  filed,  371. 
of  mechanic's  lien  required  to  be  filed  before  lis  pendens,  185. 
of  mistake,  430. 

knowledge  sufficient  to  put  him  upon  inquiry,  430. 
of  motion  for  judgment;  necessity  and  sufficiency,  524,  525. 

for  order  of  reference  to  compute  amount  due,  503. 
necessity  of,  503,  504. 
of  no  personal  claim  should  accompany  summons,  261. 
of  object  of  action  should  accompany  summons  when  served  without 
complaint,  260. 

form  of  prescribed  by  New  York  code,  259. 
of  pendency  of  action,  etc.     See  Lis  Pendens. 
of  redemption;  necessity  for,  1188. 
of  sale.    See  Sale. 

costs  on,  includes  counsel  fee,  when,  1003. 

necessity  for  personal  notice,  551. 

necessity  for  showing  outstanding  lease,  545. 


GENERAL   INDEX.  1979 

References  are  to  Sections, 
NOTICE — continued. 
of  sale — continued. 

on  foreclosure  by  advertisement,  917. 
amount  due  stated  in,  932. 
clerk's   failure  to  index,  920. 
defect  in  name  of  mortgagor ;  effect,  928. 
delivery   of    notice   to   county   clerk,   920. 
failure  to  index,  920. 
effect  on  sale,  920. 
description  of  mortgaged  premises  in,  929. 
effect  of  mistake  in  date  of  mortgage,  928. 
failure  to  state  amount  due,  917. 
personal  service  of,  921. 
who  entitled  to,  921. 
presumption  of  regularity,  921. 
publication  of,  917. 

in  Maryland,  under  statute,  917. 
in  West  \'irginia  under  code,  917. 
what  a  valid,  918. 
right  of  junior  incumbrancers  to,  923. 
service  of,  921. 

on   personal   representative,   922. 
who  entitled  to  personal,  921. 
stating  amount  due  in,  932. 
who  entitled  to  be  served  with,  921. 
of  statutory  foreclosure;  service,  etc.,  917  et  seq. 
publication  of,  1029. 

failure  of  affiant  to  sign  affidavit  of,  effect,  1029. 
service  of  in  application  for  distribution  of  surplus  money  in  foreclos- 
ure by  advertisement,  895. 
service  of  notice  of  election,  62. 

to  quit,  not  a  prerequisite  to  a  writ  of  entry  to  foreclose,  46. 
under  power  of  sale,  853. 
when  receiver  will  be  appointed  without,  771. 
OATH. 

necessity  for  officer  making  sale  to  take,  537. 
of  referee;  to  compute  amount  due,  511. 
to  take  proof  of  claims  to  surplus,  898. 
waiver,  898. 
OCCUPANT. 

necessary  defendant  in  foreclosure,  177. 
OFFER  OF  JUDGMENT.  See  Judgment. 
OFFICERS. 

and  successors  may  foreclose,  133. 

entitled  to  receive  money  paid  into  court,  363. 

fees  of,  in  foreclosure  proceedings.     See  Costs. 

holding  mortgages  in  their  official  capacity,  may  foreclose,  133. 


1980  GENERAL   INDEX. 

References  are  to  Sections. 

OFFICERS — continued. 

making  sale ;  cannot  purchase,  609. 
necessity  for  taking  oath,  537. 

who  may  make  sale  of  mortgaged  premises,  537. 
OFFICIAL  BOND. 

indemnity  mortgage;  foreclosure;  pleading,  361. 
OHIO. 

duress ;  doctrine  of,  437. 
OPENING  DEFAULT. 

See  Default  ;  Judgment. 
ORDER.    See  Decree  and  Order. 

for  service  of  summons  by  publication;  requisites  of  affidavit  to  secure, 
263. 

of  publication  of  summons  must  be  shovi^n  by  notice  annexed  to  pub- 
lished  summons,  265. 

of  reference  to  compute  amount  due,  502  et  seq. 
ORDINANCES.     (Bacon's). 

See  Lis  Pendens,  364. 
OREGON. 

agreements  as  to  methods  of  enforcing  mortgages  invalid  in,  3. 
OUTSTANDING  TITLE. 

defense  of  on  foreclosure,  495,  496. 

does  not  inure  to  benefit  of  mortgagor,  700. 

or  incumbrance,  495. 

as  defense  to  foreclosure,  495. 

procured  by  purchaser.     See  Answers  and  Defenses. 
OWNER. 

of  mortgage  dying,  personal  representative  may  foreclose,  120. 

of  one  of  several  notes  secured  by  mortgage  may  foreclose,  101. 

of  part  of  mortgaged  premises,  right  to  redeem,  1166. 
PACT  DE  ALIENDO. 

effect  of,  146. 

holder  of  mortgage  with  may  have  strict  foreclosure,  when,  973. 
PARAMOUNT  CLAIM. 

subsequent  lienors  may  set  up  and  litigate  when,  178. 
PARAMOUNT  TITLE. 

cannot  be  set  up  in  foreclosure,  482. 

parties  holding  neither  proper  nor  necessary  parties,  212. 
PARENT  AND  CHILD.    See  also  Infants;  Guardian  and  Ward, 

undue  influence  upon  child ;  relief  on  foreclosure,  435. 
PAROL  CONTRACT. 

effect  on  right  of  redemption,   1167. 

evidence.     See  Evidence. 

extension   of  time  for  paying  interest,  328. 

generally.    See  Contracts. 

to  execute  mortgage ;  validity,  330. 
equitable  lien,  331. 


GENERAL    INDEX.  1981 

References  are  to  Sections. 

PAROL  CONTRACT— continued. 
to  extend  time  of  payment,  466. 

consideration,  467. 
trust.     See  Trust  ;   Parol. 
PAROL  MORTGAGE. 

taken   up   with   proceeds   of    mortgage   void    for   usury    may   be    en- 
forced, 276. 
PARTIAL  PAYMENTS.     See  Payment. 

PARTIES.     See  also   Answers   and   Defenses;    Complaint;    De- 
murrer; Judgment,  Etc. 
administrator  of  deceased  trust  creditor  necessary  party,   127. 
all  persons  materially  interested,  should  be,  87. 

assignee  of  debt  should  be  made  a  party  to  foreclosure  by  assignor, 
still  holding  the  mortgage,   115. 
of    mortgage    assigned    collaterally,    necessary    in    foreclosure   by 
assignor,  202. 
assignor  of  debt  still  holding  the  mortgage  should  be  made  a  party 
to  foreclosure  by  assignee,  115. 
of   mortgage   by    assignment   imperfect  in    form,   necessary,    199. 
of  mortgage  by  parol,  necessary,   199. 
conditional,  necessary,  201. 

when  defense  of  usury  or  fraud  is  urged,  desirable,  199. 
barred  by  deed  in  foreclosure,  682. 
Cestuis  que  Trust. 

not  necessary  party  to  foreclosure  by  trustee,  127. 
railroad  bondholders  need  not  be  parties,  131. 

should  usually  be  made  parties  to  foreclose  by  trustee,  unless  too 
numerous,  127. 
children  taking  through  devisee  by  inheritance  as  necessary  parties,  163. 
claimant  by  paramount  title  as  necessary  party,  212. 
claimants  of  adverse  or  paramount  title ;  are  not  proper,  484. 

effect  of  making  defendant,  485. 
claimants  of  prior  rights  under  mortgage;  when  proper,  489. 
claiming  interests  in  judgment  by  default  against;  conclusiveness.  502. 
conditional  vendee  of  personal  property  situated  on  mortgaged  land 

not  proper,  144. 
defect  of ;  appearing  of  record,  670. 

objection  to,  how  and  by  whom  made;  amendment,  389,  390. 

purchaser  affected  with  notice  of,  670. 

release  of  purchaser  from  completing  purchase;  re-imbursement, 

669. 
setting  aside  sale  for,  624. 
Defendant. 

action  will  not  be  dismissed  because  subsequent  incumbrancers  are 
not  made  parties,  178. 


1982  GENERAL    INDEX. 

References  are  to  Sections. 

V  ARTIES— continued. 

Defendant — continued. 
Administrator. 

assigning  mortgage  to  heir  as  share  of  estate,  not  necessary, 

198. 
of  mortgagor  as,  136,  165. 

North  Carolina  doctrine,  136. 
not  generally,  165. 
of   subsequent  incumbrancer  should  be  appointed  and  made 
defendant  before  foreclosure,  193. 
adverse  claimants  to  premises,  not  proper,  136,  213, 
except  in  Indiana  and  Kansas,  213. 
neither  necessary  nor  proper,  213. 
objection  not  one  of  multifariousness,  but  of  jurisdiction  as  to 

subject  matter,  212. 
South  Carolina  rule,  213. 
allegation  as  to  interests,  352. 
all  mortgagors,  necessary,  137. 

all  persons  signing  bond  or  note  secured  by  mortgage,  proper,  228. 
annuitant  to  be  paid  from  proceeds  of  premises,  necessary,  164. 
any  defendant  having  real  interest  may  object  to  omission  to  make 

subsequent  judgment  creditor  a  defendant,  184. 
assignee  for  benefit  of  creditors,  necessary  party,  172. 

of  person  liable  for  deficiency,  proper,  237. 
assignee  in  bankruptcy,  a  necessary  party,  172. 

of  mortgagor  not  owning  equity  of  redemption,  not  necessary 

party,  138. 
of  subsequent  incumbrancer,  necessary  party,  188,  194. 
pendente  lite,  not  necessary,  173,  189. 
Assignee  of  Mortgage  Absolute. 

collaterally  assigned,  refusing  to  join  in  its  foreclosure,  nec- 
essary, 187. 
necessary  when,  201. 
not  necessary  party  when,  200. 
assngnees  of  subsequent  incumbrances,  necessary.  188,  194. 

pendente  lite,  not  necessary,  189. 
assignor  for  benefit  of  creditors  is  proper  party  defendant  in  fore- 
closure by  his  assignee,   118. 
assignor  holding  legal  title  necessary  party,  94. 
assignor  of  mortgage,  94. 

and  all  interest  therein  ;  not  necessary,  198. 
as  collateral  security,  refusing  to  join  in  its  foreclosure,  nec- 
essary, 187. 
covenanting  as  to  title  and  against  defenses,  proper,  255. 
of   mortgage  debt,   without  mortgage,   necessary,   199. 
of  mortgage,  guaranteeing  payment,  a  necessary  defendant  if 

deficiency  judgment  is  sought,  199. 
of  subsequent  lien  as  collateral  security,  necessary,  187. 


GENERAL   INDEX.  1983 

References  are  to  Sections. 

TARTlES—coutiiiucd. 

Defendant — continued. 

attaching  creditors,  necessarj^  183. 
Beneficiaries. 

are  when,  167,  207. 

refusing  to  join  with  trustee  as  plaintiffs,  necessary,  207. 
bondholders  secured  by  subsequent  mortgage,  may  interplead,  179. 
cestuis  que  trust ;  when  necessary,  167. 

need  not  be  made  defendants  when  too  numerous.  168. 
not  in  esse  or  not  ascertained,  not  necessary,  168. 
claims  of  interest   in  equity  of   redemption ;  right  and   necessity 

of  answering,  385. 
co-defendants;  necessary  averments  against,  341. 
complaint;  allegation  as  to  title  or  interest  of  defendant,  362. 
contemporary  mortgagees,  necessary,  204. 

corporations  owning  premises  necessary,  by  corporate  name,  176. 
creditors ;  need  not  be  parties  to  foreclosure  by  trustee  for  their 
benefit,  131. 
at  large  of  owner ;  neither  necessary  nor  proper,  183. 
debenture  holders,  146. 
Devisees. 

necessary  to   foreclosure   of   mortgage  executed  by  personal 

representatives  to  pay  debts  of  estate,  175. 
of  equity  of  redemption,  necessary,  162. 

of  infant,  lunatic,  idiot,  or  habitual  drunkard,  owner  of  prem- 
ises, necessary  defendants,  174. 
of  persons  liable  for  deficiency,  not  proper  defendants,  235. 
of  persons  subsequently  liable  for  deficiency,  not  proper  de- 
fendants, 258. 
of   subsequent   incumbrances,   not   necessary   defendants,    192. 
drunkards  owning  premises,  necessary,    174. 

eminent  domain ;  mortgagee  not  made  party,  not  bound  by  pay- 
ment of  compensation  to  wrong  person,  471. 
executors  and  administrators  not  generally,  165. 
failure  to  serve ;  purchaser  not  compelled  to  complete  purchase. 

667. 
foreclosure  by  junior  mortgagee,  joinder  of  senior  mortgagee,  332. 
general  principles.  135,  136.  178. 
grantee  not  assuming  mortgage,  385. 
grantee ;  of  heirs  not  necessary,  162. 

of  mortgagor's  assignee  in  bankruptcy,  necessary,  146. 
of  mortgagor,  necessary,  146. 

not  a  proper  party  where  foreclosure  is  by  scire  facias. 
146. 
guardian  ;  executing  mortgage,  desirable,  174. 
of  infant  heir  of  owner,  not  necessary,  161. 
of  subsequent  incumbrancer,  necessary,  195. 


1984  GENERAL    INDEX. 

References  are  to  Sections. 
VARTl'ES— continued. 

Defendant — continued. 

has  burden  of  proof  as  to  payment,  476. 

heirs,  devisees  and  personal  representatives ;  of  assignor  of  mort- 
gage and  all  interest  therein,  not  necessary,   198. 
devisees  or  legatees  of  infant,  lunatic,  idiot,  or  habitual  drunk- 
ard, necessary,  174. 
grantee  of  not  necessary,  162. 
necessary  to   foreclosure  of   mortgage  executed   by  personal 

representatives  to  pay  debts  of  estate,   175. 
of  grantee  of  premises,  136. 

of  joint  mortgagors,  not  usually  necessary  parties,   142. 
of  mortgagor   no  longer  owner  of   equty  of   redemption,  not 
necessary,    138. 

vi'hen  necessary,  161.     See  Parties,  Defendants. 
of  persons  liable  for  deficiency,  not  proper,  235. 

subsequently  liable  for  deficiency,  not  proper,  258. 
of  tenants  by  entirety,  not  necessary,  162. 
of  wife  dying  during  foreclosure,  not  necessary,   155. 
or  owner  of  equity  of  redemption,  net  necessary,  161. 
owner  of  equity  of  redemption,  not  necessary  in  foreclosure 
by  advertisement,  161. 
holders  of  junior  judgments,  not  necessary,  155. 
holders  of  subsequent  mechanic's  liens,  necessary,  185. 
holders  of  tax  certificate  as  proper,  196. 
holders  of  tax  deed  not  necessary,  136. 

husband;  necessary  to  foreclosure  against  wife's  separate  estate 
after  her  death,  160. 
of   married  woman  in  possession  claiming  title,   160. 
of  mortgagor  of  separate  estate,  not  usually  necessary,   160. 
of  subsequent   encumbrancer  not  necessarj'-,   191. 
idiots  owning  premises,  necessary,  174. 
if  property  not  incumbered,  mortgagor  alone  necessary,  137. 

in  New  York,  88. 
in  redemption  proceedings.     See  Redemption. 
incumbrancers  pendente  lite,  not  necessary,  190. 
independent  mortgagee  as  necessary  party  to  foreclosure  by  holder 

of  note,  205. 
indorsers  before  delivery,  229. 
infants ;  necessary  allegations  of  complaint,  348. 
owning  premises,  necessary,  174. 
requisites  of  order  of  reference,  502. 
joinder;   of  mortgagor   and   successive  grantees   assuming  mort- 
gage, 356. 
of  senior  mortgagee,  332. 
joint  mortgagees,  personal  representatives  of  deceased  joint  mort- 
gagee, 99. 


GENERAL   INDEX.  1985 

References  are  to  Sections, 

PARTIES — continued. 

Defendant — con  tin  tied. 

joint  or  several  mortgagees,  refusing  to  join  as  plaintiffs,  neces- 
sary, 203. 
judgment  creditors  pendente  lite,  not  necessary,  183. 
having  assigned  judgment,  not  necessary,  186. 
judgment  creditor  who  has  levied  execution,  remains  neces- 
sary until  judgment  satisfied,  183. 
of  owner,  necessary,  182. 
of  owner  of  life  estate,  necessary,  182. 
legatee;  of  money  to  be  paid  froni  proceeds  of  mortgage  should 
be  made  defendant  on  foreclosure  by  executor,  122. 
to  be  paid  from  proceeds  of  premises,  necessary,   164. 
lessee  in  possession,   147. 
lessor  as  necessary  party,  212. 
liable  for  mortgage  debt,  215,  216. 
at  common  law,  216. 
general  principles,  215. 

parties  originally  liable ;   general   principles,   226. 
parties   subsequently   liable ;   general   principle^.   238. 
statutory,  217. 

theory  of  English  and  common  law  practice,  218. 
lienholders  necessarj-,  136. 
lunatics  owning  premises,  necessary,  174. 

service  upon ;  release  of  purchaser  from  completing  sale,  672. 

maker  of  note,  for  which  another  person  executes  the  mortgage 

as  collateral  security,  may  be  made  a  defendant  in  order  to 

obtain  a  deficiency  judgment  against  him,  137. 

may   be   persons   interested    in   mortgage    who    refuse   to   join    as 

plaintiffs,  107. 
may  be  served  by  publication,  262. 
mesne  owners  of  equity  of   redemption  generally  not  necessary. 

149. 
mortgage;  covering  separate  parcels;  may  be  foreclosed  against 
only  one.  308. 
executed   by   husband   and   wife;   joinder   of   wife,   355. 
mortgagees   and    incumbrances;    adjustment   of   equities   between. 

493. 
mortgagees,  owners  in  severalty,  where  one  forecloses,  others  not 
consenting,  may  be  made  defendants,  100. 
proper  defendants,  when,  201,  206. 
mortgagor;  always  a  desirable  defendant,  139. 

a  married  woman  with  separate  estate,  necessarj-.   154. 
having  conveyed  by  deed  delivered  in  escrow,  necessary,   145. 
having  conveyed  by  deed  intended  only  as  collateral  security, 
necessary,  145. 
Mortg.  Vol.  11,-125. 


1986  GENERAL   INDEX. 

References  are  to  Sections. 
PARTIES — continued. 

Defendant — continued. 
mortgagor — co  ntinued. 

having    conveyed    premises,    necessarj'    while    conveyance    is 

unrecorded,  137. 
having  fraudulently  conveyed  the  premises,  necessary,   145. 
holding  any  equitable  interest,  necessary,  143. 
necessary,  although  under  contract  to  sell,  144. 
no  longer  owning  equity  of  redemption,  not  necessary,  138. 
Indiana  doctrine,  138. 
Kansas  doctrine,   138. 
or  his  grantee  may  defend,  382. 

still   owning   any   kind   of    equitable   interest,    necessary,    143. 
still  owning  equity  of  redemption,  necessary,  137. 
still  owning  part  of  the  premises,   necessary,   140. 
under  contract  to  sell  premises,  necessary,  137. 
who  has  sold  premises,  may  apply  to  be  made  a  party,  138. 
necessary  averments  to  affect  interests  of,  341. 
Necessary  Parties  Defendant,  135. 

administrator  of  mortgagor,  as  136,  234. 
adverse  claimant  of  paramount  title  not.  136.  212,  213. 
Indiana  rule,  136. 

assigning  mortgage  to  him  as  his  share  of  estate,  not,  198. 
North  Carolina  doctrine,  136. 
assignee  for  benefit  of  creditors,  172. 
assignee  in  bankruptcy,   172. 
beneficiaries  are,  when,  167,  207. 
cestuis  que  trust,  are,  when,  167. 
debenture  holders,  146. 
definition  of  time,  necessary  parties,  135. 
executors  and  administrators,  not  generally,  165. 
grantees  of  heirs,  not  necessary,  162. 
Heirs, 

of   deceased  mortgagor  or  owner,  necessary,  when,    161, 
162. 
California  rule,  161. 
Florida   doctrine,    161. 
grantees  of   not  necessary,   when,   162. 
when  not  necessary,  162. 
of  grantee  of  premises,  necessary,  136. 
holder  of  junior  judgment  not,  155. 
husband    of    married    woman    in    possession    claiming    title, 

necessary,  160. 
lessee  in  possession,  147. 
mesne  owner  not  generally  necessary,   149. 
mortgagor  no  longer  owning  equity  of  redemption,  not,  138. 
Indiana  doctrine,  138. 
Kansas  doctrine,  138. 


GENERAL    INDEX.  1987 

References  are  to  Sections, 
VKRTl^S— continued. 

Defendant — con  tin  ued. 

Necessary  etc. — continued. 

mortgagor  still  holding  any  kind  of  equitable  interest,  neces- 
sary, 143. 
mortgagor  still  owning  equity  or  redemption,  137. 
mortgagor  tenant  in  common  by  the  entirety,  necessary,  141. 
occupant  of  premises,  177. 
owner  of  equity  of  redemption,  136,  146. 

the  only  defendant  necessary  in   South  Dakota.    136. 
owner  of   mortgaged  premises  omitted  as   defendant,   effect, 

147. 
paramount  title,  holder  of  not,  136. 

Indiana   rule,    136. 
person  claiming  adverse  title,  136. 
persons  originally  liable  for  debt,  234. 
devisees  of,  235. 
heirs  of,  235. 

personal  representatives  of,  234. 
persons  subsequently  liable,  238  et  seq. 
purchaser  assuming  mortgage,  242. 

grantor  can  not  release  from  liability,  250. 
prior  vendee  not,  136. 
purchaser  of  equity  of  redemption,  146. 

pac  de  nan  aliendo  changes  rule,   146. 
purchaser  pendente  lite  not,  177. 
receiver  in  bankruptcy,  172. 

Illinois  doctrine,  172. 
remaindermen  are,  170. 
reversioners  are,  170. 
tenants  necessary,  177. 
to  perfect  title,  178. 

assignee  of  mortgage  necessary  when,  201. 
beneficiaries   necessary  when,    167,  207. 
purchaser  at  tax  sale,  196.    See  Tax  Sale. 
subsequent  judgment  creditors,   183. 

remedy  if  omitted  as  defendants,  182. 
subsequent  lienor,  178. 
subsequent  mortgagees  when,  179. 

remedies  where  omitted  as  parties,   180. 
trustees ;  holding  any  interest  whatever  for  beneficiaries, 

necessary  when,   166,  207. 
vendor  and  vendee  under  land  contract,  144. 
wife  of  mortgagor  or  owner  of  equity  redemption  neces- 
sary, 155,  158. 
where  land  occupied  as  homestead,  155. 
non-residents  may  be  served  by  publication,  262. 


1988  GENERAL    INDEX. 

References  are  to  Sections. 
PARTIES — continued. 

Defendant — continued. 

occupants  of  mortgaged  premises,  necessary  defendants,  177. 
omission  of  owner  of  equity  of  redemption  must  be  objected  to 

by  answer  or  demurrer,  148. 
omission  of  wife  having  dower  right  may  be  objected  to  by  any 

defendant,  156. 
on  redemption  of  land  mortgaged  to  partnership,  1234. 
only  those  affected   by   litigation,  484. 

owner  of  equity  of  redemption  always  necessary  to  give  validity 
to  sale,  136,  147. 
the  only  necessary  defendant  in  South  Dakota,   136. 
owner  of  mechanic's  lien,  having  assigned  it,  not  a  necessary  de- 
fendant,  186. 
owner  of  mortgaged  premises  omitted  as  defendant;  effect,  147. 
ownership  of   mortgage   doubtful  or  in   dispute,  other  claimants 

desirable,  206. 
paramount  title,  holder  of  not,   136. 

Indiana  rule,  136. 
partners  of  plaintiff  refusing  to  become  plaintiffs  on  foreclosure 

of  mortgage  securing  debt  to  partnership,  97. 
Person. 

claiming  adverse  title,   not,    136. 

having  no  interest,  and  against  whom  there  can  be  no  relief, 

not  proper,  186. 
having  title  paramount  to  the  mortgage,  not  proper,  212. 
holding  equitable  interest  in  mortgage  or  contemporary  liens, 

refusing  to  join  as  plaintiffs,  necessary,  197. 
holding  paramount  title  neither  proper  nor  necessary,  212. 

general  rule  and  limitations,  212. 
originally  liable  for  debt,  234. 
devisees,  235. 
heirs,  235. 
personal  representatives,  234. 
signing  bond  or  note,  but  not  mortgage,  not  necessary,  though 

proper,  229. 
subsequently  liable  for  mortgage  debt,  238  et  seq. 
Illinois  note,  238. 
New  York  rule.  242. 
purchaser  assuming  mortgage,  242. 

grantor  can  not  release  from  liability  on,  250. 
Personal  Representative.^. 

executing  mortgage  to  pay  debts  of  estate,  desirable,   175. 
of  deceased  subsequent  incumbrancer,  necessary,  193. 
of  mortgagor  necessary  in  foreclosure,  162,  165. 
bv  advertisement  in  New  York,  162,  165. 


GENERAL   INDEX.  1989 

References  are  to  Sections, 

PARTIES — continued. 

Defendant — continued. 

Personal  Representativ-es — continued. 

of  mortgagor,  no  longer  owner  of  equity  of  redemption,  not 

necessary,  138. 
of  owner  of  equity  of  redemption  usually  not  necessary,  165 

but  always  proper,  165. 
of  persons  liable  for  deficiency,  proper,  234. 
of  persons  subsequently  liable  for  deficiency,  proper,  258. 
of  prior  lienor  proper  party,  211. 

of     wife  dying  during  foreclosure,  not  necessary,   155. 
parties  in  redemption  action,  1233. 
proper  but   not  necessary  parties,  234. 

New  Jersey  doctrine,  234. 
should  be  defendants  in  foreclosure  by  legatee  of  mortgage, 
122. 
pledgee   of    mortgage,    collaterally    assigned,    necessary    on    fore- 
closure by  pledgor,  105. 
Prior  Incumbrancers  or  Lienors. 
Assignee  of 

personal   representative  proper   party,  211. 
bound  by  judgment  on  failure  to  answer  or  demur,  211. 
claimed  to  be  junior  lienors,  proper  defendants  for  litigating 

questions  of  priority,  214. 
cross-bill  by,  211. 

made  defendants  in  Maryland,  182. 
may  be  dismissed  with  costs,  209. 
may  be  made  defendants  to  have  claim  ascertained  and  paid, 

136,  211. 
may  be  made  defendants  when,  136. 
not  necessary,  209. 

not  proper  defendants  to  foreclosure  of  mechanic's  lien,  210. 
right  of,  to  answer,  384. 
when  proper  defendants,  208. 
when  not,  209. 
Proper  Defendants.    See  Mortgagee. 
may  be  made  party  when,  211. 

may  foreclose  during  foreclosure  of  junior  mortgage,  210. 
Proper  Parties. 

claimant  of   paramount  title   not,    136,  212. 

Indiana  doctrine,  136. 
holder  of  tax  title  proper  if  not  necessary,  196. 
persons  holding  paramount  title  neither  necessary  nor  proper. 
212. 
general  rule  and  limitations,  212. 
person   in   possession,    136. 


1990  GENERAL    INDEX. 

References  are  to  Sections. 
PARTIES — continued. 

Defendant — continued. 

Proper   Parties — continued. 

person  originally  liable  for  debt,  234. 
devisees   of   proper   parties,   235. 
heirs  of  proper  parties,  235. 
personal  representatives  proper  parties,  234. 
Personal  Representatives. 

New  Jersey  rule,  234. 
proper  but  not  necessary  parties,  234. 
senior  mortgagee  is  when,  214. 
widow  of  deceased  mortgagor,  136. 
purchaser;  at  execution  sale  of  equity  of  redemption;  a  necessary 
party,  143. 
at  tax  sale  a  proper  defendant,   196. 

not  affected  by  a  foreclosure  to  which  he  is  not  made 
a  party,    196. 
equity  of  redemption,  146. 
assuming  mortgage,  242. 
pact  de  non  aliendo  changes  rule,  146. 
of  easement  from  mortgagor  or  owner  of  equity  of  redemp- 
tion, necessary,   147. 
of  premises  pendente  lite,  not  necessary,   150,   177. 
Receiver. 

in  bankruptcy,   172. 

Illinois   doctrine,   172. 
of  corporation,  172. 
remaindermen  and  reversioners,  necessary,    170. 
defendant  in  esse,  necessary,  171. 

owner  of  first  vested  estate  and  owners  of  intermediate  es- 
tate, sufficient,  170. 
reversioners  are,  170. 

right  of  surety  to  require  persons  interested  to  be  joined,  388. 
Senior  Mortgagee. 
joinder  of,  332. 
proper  party  when,   214. 
set-off  of  debt  due  mortgagor;   junior  encumbrances;  cross-bill, 

440. 
should  be  all  parties  interested  in  the  equity  of  redemption,   107. 
states,   counties   and   cities   holding   tax   liens,   proper,    196. 
stockholders  not  usually  necessary  defendants  to  foreclosure  of 

corporate    mortgage,    176. 
stranger  claiming  adversely ;  not  proper,  484. 
subsequent  grantee ;  when  proper,  489. 
Subsequent  Incumbrancers. 

a  lunatic,  idiot,  or  habitual   drunkard;  committee  necessary, 
195. 


GENERAL    INDEX.  1991 

References  are  to  Sections. 
PARTIES — continued. 

Defendant — continued. 

SuBSEQuEXT  INCUMBRANCES — Continued. 

a  lunatic,  idiot,  or  habitual  drunkard,  proper,  195. 

allegation  as  to  interests,  352. 

an   infant  proper,    195. 

as  parties  defendant,  178. 

being  a  married  woman,  does  not  alter  rule  making  necessary, 

191. 
heirs,  devisees,  legatees,  and  annuitants  of,  not  necessary,  192. 
holding  any  equitable  or  contingent   interest,   usually  neces- 
sary,  187. 
may  be  made  defendants  on  their  own  application,   178. 
may  set  up  paramount  claim,  when,  178. 
necessary,  178,  1105. 

no  longer  holding  lien,  not  necessary,  186. 
subsequent  judgment  creditor,  182,  183. 
necessary,  when,  182. 
not  necessary,  when,  183. 
remedy  if  omitted  as  defendant,  184. 
subsequent  lienors,  178. 
proper  parties,  178. 
Subsequent  Mortgagees. 

having  been  paid  in  full,  not  proper,  186. 
remedies  where  omitted  as  parties,  180. 
New  York  rule,  180. 
still  owning  mortgages,  necessary,  179. 

trustee   for   numerous  bondholders,  the   latter  not  necessary 
defendants,  179. 
successor;  of  assignee  in  bankruptcy  of  subsequent  incumbrancer, 
necessary,  194. 
of  trustee  holding  subsequent  mortgage,  necessary,  179. 
Tax  Title  Holder. 

bar  by  foreclosure,  488. 
proper  if  not  necessary  party,  196. 
tenants  and  occupants  of  mortgaged  premises,  necessary,  177. 
tenants  in  common,  owners  of  mortgaged  premises,  all  necessary, 

137. 
trustees;  holding  any  interest  in  premises,  necessary,  166,  207. 
must  be  made  parties  in  their  representative  capacity,   166. 
refusing  to  join  with  beneficiaries  as  plaintiffs,  necessary,  207. 
vendee  not,  when,   136. 

vendee  under  land  contract  with   mortgagor,   necessary,    144. 
when   adjoining  owner  necessary  party,   146. 
who  may  avail  themselves  of  defense  of  usury,  411. 
who  may  set  up  want  of  consideration,  401. 
who  may  plead  counter-claim;  personal  liability,  442. 


1992  GENERAL    INDEX. 

References  are  to  Sections. 

PARTIES — continued. 

Defendant — continued. 

who  may   show   defective   execution  and   record,  398. 
widow ;  accepting  devise  or  bequest  made  in  lieu  of  dower,  not 
necessary,  156. 
bar  of  dower,  351. 

of  mortgagor  or  owner  of  equity  of  redemption,  necessary, 
155. 
wife;  having  made  grant  of  dower,  still  necessary,  155,  158. 
not  joining  in.  purchase  money  mortgage,  necessary,  156. 

but  not  in  Illinois,  Indiana  and  Michigan,  156. 
not  necessary  where  dower  rights  abolished  by  statute,  155. 
not  necessary  where  rights  of  husband  and  wife  completely 

severed   by  statute,    159. 
of  infant,  idiot,   lunatic,  or  habitual  drunkard  not  necessary 
defendant   to    foreclosure   of    mortgage   by   guardian   or 
committee,  where  not  signed  by  her,  174. 
of  mortgagor,  necessary,  155. 

of  owner  of  equity  of  redemption,  necessary,   155. 
of  subsequent  incumbrancer  not  necessary,   191. 
where  land  occupied  as  homestead,  155. 
objection  to  defect  of;  how  made,  389. 
Plaintiff. 

action  should  be  commenced  by  person  holding  largest   interest 

in  mortgage,    107. 
administrator    of    deceased    mortgagee    may    foreclose    mortgage 
securing  annuity,  if  the  condition  was  broken  during  de- 
cedent's   life-time,    120. 
all  having  interest  in  the  mortgage  debt,  may  be,  89. 
annuitant    may    foreclose    mortgage   to    him    for    annuity,    108. 
Assignee,  127. 

and  assignor  should  be  plaintiffs  when,  94. 
in   bankruptcy  or  by  general  assignment  may  foreclose,   118. 
of  debt  may  foreclose,  though  he  does  not  actually  hold  the 
mortgage,  115. 

may  foreclose  in  name  of  assignor,  still  holding  the  mort- 
gage, 115. 
of    foreign    personal    representative,    may    foreclose,    126. 
Of  Mortgage. 

can  not  foreclose  where  the  bond  not  assigned,  114. 
sole  owner  is,  92. 
pendente  lite,  may  continue  foreclosure,  119. 
sole  owner,  92. 

what  assignment   enables   him  to  foreclose,  93. 
without  title  to  mortgage,  can  not  foreclose,  92. 
assignment  by  mortgagor;  who  proper  plaintiff,  390. 


GENERAL   INDEX.  1993 

References  are  to  Sections. 

PARTIES— coutinued. 
Plaintiff — continued. 

assignor  of  mortgage  can  not  foreclose,  91. 

and  assignee  should  be  plaintiff,  when,  94. 
Beneficiaries. 

as  plaintiffs,   127,  131,  132. 
may  foreclose,  when,  132. 
Minnesota  rule,   131. 
not  necessary,  when,  131. 

proper  plaintiffs  on  refusal  of  trustee  to  act,  127. 
bondholders  are,  when,   127. 
Cestuis  Que  Trust. 

as  parties  plaintiff,   131,  132. 
may   foreclose,   when,   132. 
devisees  of  mortgagee  dying ;  not,  122. 
disability  of  foreign  personal  representative  to  foreclose  attaches 

only  to  person,  not  to  subject  matter,  126. 
distributees  of  mortgagee  allowed  to  foreclose  after  administra- 
tion closed,  122. 
equitable  owner  by  subrogation  may  foreclose,  110. 
executors ;  allowed  to  foreclose  mortgage  specifically  bequeathed, 
122. 
may  foreclose  when  a  bequest  is  to  be  paid   from  proceeds 

of  mortgage,  122. 
may  revive  foreclosure,   120. 
of  trustee  allowed  to  foreclose,  120. 

or    administrator    to    whom    a    mortgage    is    executed,    may 
foreclose,  123. 
foreclosure  by  assignee  in  bankruptcy,  413. 

creditors  not  necessary  parties,  413. 
foreclosure  by  holder  of  several  mortgages  covering  same  prem- 
ises ;  joinder,  333. 
foreign  personal  representatives  may  not  usually  foreclose,   125. 
may  foreclose  by  advertisement  under  power  of  sale,   126. 
must  obtain  letters  within  the  state,  to  foreclose,  125. 
foreign    specific    legatee    of    bond    and    mortgage   may   foreclose, 

126. 
general  principles,  95. 
general  rules,  87,  89. 
grantor  paying  mortgage  which  has  been  assumed  by  his  grantee, 

may   foreclose,   110. 
heirs  of  mortgagee  allowed  to  revive  the  action,  122. 

can  not  foreclose,  122. 
heirs  of  mortgagee  usually  not  necessary,  120. 
holder  of  mortgage,  conditioned  to  pay  an  annuity,  may  foreclose, 

90. 
holder  of  note  or  bond  when,  127. 


1994  GENERAL    INDEX. 

References  are  to  Sections. 
PARTIES — continued. 
Plaintiff — continued. 

in  equitable  foreclosure,  88. 
Alabama  rule,  88. 
California  code,  88. 
New   York   doctrine,   88. 
in   New  York,  88. 

infants ;  release  of  purchaser  from  completing  sale,  673. 
joint  mortgagees,  95  et  seq. 

any  one  or  more  may  foreclose,  95. 

personal    representatives    of    deceased    joint    mortgagee 
may  foreclose,  99. 
in  representative  capacity,  96. 

joint  survivors,  where  the  action  is  commenced  by  personal 
representatives   of   deceased  joint  mortgagee,   may   fore- 
close, 99. 
one  dying  survivor  may  foreclose,  98. 

where  joint  mortgage  secures  different  debts  in  severalty  all 
are  necessary  parties,  95. 
judgment  creditor  of  owner  can  not  be,    182. 
legatee  of  interest  due,  may  foreclose  on  default,  108. 

of  mortgage,  may  foreclose,  122. 
married    woman   allowed   to    foreclose   mortgage   to    herself    and 
husband,  after  his  death,  134. 
may  foreclose  against  husband,   134. 
may  foreclose  in  her  own  name,  134. 
mortgage ;  to  guardian  may  be  foreclosed  by  his  successor,   133. 
to  state  comptroller  may  be  foreclosed  by  his  successor,  133. 
to  state  superintendent  of  insurance  may  be  foreclosed  by  his 

successor,  133. 
to  U.  S.  loan  commissioners  may  be  foreclosed  by  their  suc- 
cessors, 133. 
mortgagees,  89,  90. 

administrator  of  mortgagor's  estate  may  foreclose,  90. 
owners  in  severalty ;  where  one  is  deceased,  100. 

any  one  or  more  may  foreclose,   100. 
owning  contemporaneous    mortgages    which    are    equal   liens, 
may  unite  as  co-plaintiffs,  116. 

upon  refusal,  any  one  or  more  may  foreclose,  116. 
under  contemporaneous  and  equal  mortgages,  may  unite  as 
co-plaintiffs,    100. 
must  have  real  interest  in  the  action,  89. 
no  person  can  be  made  plaintiff  against  his  will,   107. 
not  material  which  brings  the  action,  89. 
objection   to   forclosure   by   foreign   personal   representative  must 

be   made   by   demurrer   or   answer,    126. 
one  or  more  cestuis  que  trust  may  foreclose  for  all,  132. 


GENERAL   INDEX.  1995 

References  are  to  Sections. 
VKRTl^S— continued. 
Plaintiff — co  n  tin  ucd. 

one  who  advances   money   for   payment   of   mortgage,   expecting 
another  mortgage  to  himself  as  security,  may  foreclose, 
109. 
owner  of  equitable  interest  of  any  kind  in  mortgage  may  gener- 
ally foreclose,   107. 
owner  of  one  of  several  notes  secured  by  a  mortgage  may  fore- 
close, 101. 
owner  of  undivided  part  of   mortgaged  premises  may  foreclose 

mortgage  on  other  half,  96. 
partners,  97. 

any  one  or  more  may  foreclose,  97. 

one  of  them  holding  mortgage  as  trustee  for  the  partnership, 

may  foreclose,  97. 
partner  proper  plaintiff,  97. 
personal    representatives    of    deceased    owner    of    mortgage    may 
foreclose,  120. 
of    executors    or    administrators,    to    whom    mortgages    arc 

executed  as   such,  can  not  foreclose,  123. 
of  vendor  may  foreclose  land  contract,  121. 
South  Carolina  doctrine,  120. 

where  mortgagee  dies  pending  action  to  forecfose,  120. 
persons  in  official  capacity  may  foreclose  mortgages  to  them  as 

such  officers,  133. 
pledgee  of  mortgage  collaterally  assigned  may  foreclose,  105,  106. 

may  be  co-plaintiff  with  pledgor,  105. 
public  officers  and  successors,  133. 
real  party  in  interest  must  be  plaintiff,  390. 
receiver  of  insolvent  corporation  may  foreclose,.  118. 
right  of  assignee  of  mortgage  to  sue  in  his  own  name,  419. 
should  be  all  parties  interested  in  the  mortgage,  107. 
successor;  in  office  may  foreclose  mortgage  to  his  predecessor  in 
his  official  capacity,  133. 
of  trustee  may  usually  foreclose,   120. 

successors   of   executors    or   administrators,   to   whom    mort- 
gages are  executed  as  such,  may  foreclose,  124. 
suit  by  mortgagee  for  use  of  assignee,  92. 
surety  alone   may   foreclose   indemnifying  mortgage,  90. 
for  mortgage  debt  may  foreclose.  111,  112. 

where  grantee  has  assumed  mortgage,    112. 
where  he  has  guaranteed  payment.  111. 
where  junior  interest  redeems  from  senior  interest,   113. 
Trustee. 

and  cestuis  que   trust  should  unite  in   foreclosing  mortgage, 
132. 


1996  GENERAL   INDEX. 

References  are  tg  Sections, 
PARTIES — continued. 
Plaintiff — continued. 
Trustee — continued. 

are  proper  plaintiffs,  127. 

Rhode  Island  doctrine,   127. 
statutory  authorit3%    127. 
at  request  of  one  of  beneficiaries,  129. 
delegation  and  substitution  of  power,  128. 
may  foreclose,  127. 

of  fund  for  benefit  of  creditors  may  foreclose  without  mak- 
ing creditors  parties,  131. 
possession  of  land  not  required,  127. 
provisions  in  trust  deed,  129. 
refusal  of  to  act  beneficiary  may,  128. 
requisites  to  enable  to  foreclose,   129. 
six  months  leniency  clause,  effect  of,  129. 
stipulated  percentage  of  holdings  required  when,  130. 
to  whom  mortgages  are  executed  as  such,  may  foreclose.  127. 
where  executor  has  invested  estate  funds  in  his  individual  capa- 
city; his  personal  representatives  alone  can  foreclose,  123. 
who  may  foreclose  mortgage  payable  to  mortgagee  alone,  415. 
who  proper  parties  plaintiff,  89. 
plaintiff  and  defendant ;  when  mortgagor  has  assigned,  390. 
prior  lien-holders ;  effect  of  decree,  487. 

unless  joined,  not  affected  by  foreclosure  sale,  683. 
purchaser  assuming  mortgage,  proper,  745. 
real  owner  need  not  be  a  party  to  foreclosure  by  an  officer  acting  in 

his  official  capacity,  133. 
receiver  of  mortgagee  as  necessary  on  redemption,   1234. 
residuary  legatees  and  devisees  as  necessary  parties,  164. 
should  be  named  in  complaint,  338. 
subsequent  guarantors  of  mortgage  debt,  256. 
subsequent  lienor  as  necessary  party,  178. 
summons;  form,  requsites,  etc.     See  Summons. 
to  foreclosure  by  advertisement.    See  Statutory  Forecelosure. 
to  statutory  foreclosure.     See  Statutory  Foreclosure. 
notice  to,  917  et  seq. 
who  may  foreclose,  916. 
to  strict  foreclosure.    See  Strict  Foreclosure. 
trustee  as  necessary  party,  132. 

trustee  should  be  made  a  party  to  foreclosure  by  cestuis  que  trust,  132. 
when  mortgage  remains  same  as  at  delivery,   mortgagee  and   mort- 
gagor are  the  only  parties,  88. 
where  beneficiary  and  trustee  are  the  same  person,  132. 
where  several  notes  are  secured  by  a  mortgage,  all  owners  of  such 

notes  are  necessary  parties,   102-103. 
who  may  plead  payment.  468. 
widow ;   dower   right   subsequently  accrued,   necessary  party,   486. 


GENERAL    INDEX.  1997 

References  arc  to  Sections. 

PARTITION. 

decree  of  sale;  can  not  be  modified  by  decree  of  foreclosure  against 

same  land,  527. 
necessary  before  foreclosure  of  mortgage  by  a  tenant  in  common,  140. 
PARTNERSHIP. 

any  one  or  more  of  firm  may  foreclose.  97. 

dissolution;  lis  pendens  not  operative  against  prior  mortgage,  375. 

estoppel;  to  set  up  want  of  authority  in  mortgagee  to  whom  alone 

mortgage  was  executed,  97. 
foreclosure,  form  of  complaint  on,  336. 
judgment  confessed  by  one  partner,  877. 

priority  in  distribution  of  surplus,  877. 
one  of  firm  holding  mortgage  as  trustee  for  the  partnership,  may  fore- 
close alone,  97. 
partner;  of  plaintiff,  refusing  to  join  in  foreclosure  of  mortgage  to 
partnership,  may  be  made  defendant,  97. 
PART   PERFORMANCE. 

of  agreement  to  execute  mortgage;  statute  of  frauds,  331. 

PATENT. 

of  public  lands  to  mortgagor;  inures  to  mortgagee,  451. 

PAYMENT. 

accepting  part,  1070. 

effect  on  right  of  redemption,  1070.  See  Redemption. 
after  transfer  of  note  and  mortgage  before  maturity ;  effect,  468. 
as  a  defense  to  foreclosure,  468.     See  Answers  and  Defenses. 
assignment  of  lease  as  additional  security  as,  469. 
assumption  of  mortgage ;  denial  of  liability  on,  481. 
at  maturity ;  effect,  468. 
before  maturity ;  effect,  468. 

option;  election  must  be  pleaded  and  proved,  475. 
before  judgment,  363. 

dismissal  of  complaint  on,  363. 
before  sale,  stays  proceedings,  583. 

subsequent  default,  583. 
by  assumption  of  prior  mortgage,  472. 

defense  as  against  subsequent  assignee,  472. 
by  mortgagor;   after  conveyance,  474. 

after  transfer;  effect  in  keeping  alive  debt,  474. 
by  third  person;   agency;   ratification,  468. 
cancellation  of  mortgage  as,  476. 

change  in  form  in  indebtedness  will  not  operate  as,  469. 
consideration    for   e.xtension   of   time   of;   prevention   of    foreclosure 
of  second  mortgage  as,  467. 

costs  and  taxes,  470. 

on  appeal ;  application  on  mortgage,  469. 
defense  in  foreclosure,  468  et  seq. 

as  against  equitable  assignee  or  mortgage,  468. 


1998  GENERAL   INDEX. 

References  are  to  Sections. 

PAYMENT— continued. 
Defence — continued. 

by  fraudulent  assignee,  414. 
must  be  clearly  established,  468. 

reliance  on  statement  of  mortgagee's  administrator  as  to  owner- 
ship of  mortgage,  468. 
who  may  plead,  468. 
discharge  by  joint  creditor;  validity,  477. 

by  warranty  deed  by  mortgagee  after  foreclosure  for  installment, 

477. 
equitable;  agreement  to  accept  other  security,  477. 
not  effected  by  recovery  of  judgment  for  debt,  477. 
satisfaction;  what  constitutes  and  how  alleged,  477. 
settlement ;  judgment  on  new  note  given  for  balance,  477. 
to  give  priority  to  second  mortgage,  477. 

not  a  satisfaction  as  between  parties,  477. 
effect  of  neglect  to  pay  installments,  327,  328. 

extension  of  time  of ;  as  a  defense  on  foreclosure;  consideration,  466, 
467, 
by  trustee,  466. 

improvement  of  mortgaged  premises  by  mortgagor  as  considera- 
tion, 467. 
reduction  of  amount  of  prior  mortgage  as  consideration  for,  467. 
extinguishes  mortgage,  468,  915. 

and  power  of  sale  imder,  915. 
failure  of  order  of  sale  to  show  as  ground  for  resale,  624. 
for  improvements  on  redemption,  1189. 
for  purpose  of  re-mortgaging;  satisfaction,  477. 
from  lapse  of  twenty  years,  476. 
in  federal  courts,  1176. 
in   redemption,  mode  and   effect  of.   See  Redemption,  Terms,   etc. 

New  York  rule,  1176. 
indorsed  on  mortgage ;  complaint  must  set  forth,  337. 
inferred ;  from  circumstances,  476. 

from  failure  to  produce  bond,  476. 
interest;   by  life  tenant;   preserves   life  of   mortgage   as  against   re- 
mainderman ;  limitation  of  actions,  474. 
by  purchaser  of  equity  of  redemption,  474. 

prevents   running  of  limitation  against  mortgagor's  liability, 
474. 
giving  of  note  for,  is  not,  469. 
inability  to  find  mortgagee,  475. 
prevents  or  removes  bar,  81. 

where  several  interested  in  equity  of  redemption.  81. 
will  not  prevent  or  remove  bar  as  against  mortgagor's  grantee, 
81. 


GENERAL    INDEX.  1999 

References  are  to  Sections. 

PAYME}\T— continued. 
Into  Court. 

dismissal  of  complaint  upon ;  foreclosure,  363. 
may  be  made  in  foreclosure  for  part  of  debt,  275. 
of  money  previously  tendered,  344. 
what  officer  entitled  to  receive,  363. 
made    by    mortgagor    to    mortgagee    without    notice    of    assignment; 

validity,  416. 
manner  of  pleading,  475. 
mortgage  kept  alive  after ;  when,  468. 
must  be  a  full  liquidation  of  debt,  469. 
new  mortgage  accepted  for  old  as,  469. 
of  condemnation  money  to  mortgagor,  471. 

not  bar  foreclosure,  471. 
of  costs  on  redemption,  1184.     See  Redemption. 
of  installment,  with  costs,  terminates  foreclosure,  468. 
of  mortgage  debt,  915. 
accepting  part,  1070. 

effect  on  right  of  redemption,  1070.     See  Redemption. 
after  breach  of  condition,  1060. 

effect  of,  1060. 
as  a  defense  in  foreclosure,  468.     See  Answers  and  Defenses. 
before  judgment,  363. 

dismissal   of   complaint   on,   363. 
defense  in  foreclosure  by  fraudulent  assignee,  414. 
extinguishes  power  of  sale,  915. 
in  Federal  courts,  1176. 
mode  and  effect  of  in  redemption.     See  Redemption;  Terms,  Etc. 

New  York  rule,   1176. 
presumption  of  from  possession  by  mortgagor,  75. 
stays  proceedings  to  foreclose,  583. 
to  foreign  personal  representative  cancels  lien,   126. 
to  sheriff,  1176. 
to  whom  to  be  made,  1176. 
in  Federal  courts,  1176. 
sheriff,  when,  1176. 
of  outstanding  claim ;  as  defense  in  foreclosure,  497. 
of  part;  prevents  or  removes  bar,  81. 

pending  foreclosure;  effect,  469. 
on  redemption ;  mode  and  effect  of.     See  Redemption  ;  Terms,  Etc. 

New  York  rule,  1176. 
Partial. 

acceptance  of,  1070. 

effect  on  redemption,  1070.     See  Redemption. 


2000  GENERAL    INDEX. 

References  are  to  Sections. 
PAYMENT — continued. 
Partial — continued. 

application ;  balance  on  account,  in  subsequent  transactions,  473. 
by  court;  according  to  equitable  rights  of  all  interested,  473. 
general  payment;  upon  mortgage  instead  of  open  account, 

473. 
upon  secured  debts,  to  release  securities,  473. 
by  creditor;  failure  of  debtor  to  direct,  444,  473. 
by  neither  party ;  direction  by  court,  473. 

debt  of  mortgagee  to  mortgagor;  protection  of  junior  incum- 
brancers, 493. 
how  made,  473. 

implied  by  attending  circumstances,  473. 
intention  of  parties,  473. 
of  book  account  indebtedness;  rights  of  junior  incumbrancers, 

473. 
of  wages  earned  by  mortgagor,  473. 
once  made  must  stand;  can  not  be  transferred  to  subsequent 

debt,  473. 
payment  received  as  deposit;  stoppage  of  interest,  472. 

application  as  of  date  made,  472. 
payments  in  discharge  of  duty  in  which  others  interested,  473. 
not  used  as  consideration  for  assignment  to  third  person, 
473. 
proceeds  of  assigned  mortgage;  on  mortgage  instead  of  open 

account,  480. 
right  of  debtor  to  direct,  473. 
set-oflf,  445. 

sufficiency  to  prevent  bar  by  limitation,  474. 
whether  upon  mortgage  or  open  account,  469. 
Presumption  Of. 

afforded  by  lapse  of  time,  73. 
from  possession  by  mortgagor,  75. 

of  notes  and  mortgage,  75,  476. 
From  Adverse  Possession. 

by  several  successive  owners,  77. 

how   rebutted;   circumstances    explaining   delay;    relationship 
between  parties,  76. 
circumstances  explaining  delay,  76. 

alien  prevented  from  suing  by  war,  76. 
plaintiff  ignorant  of   defendant's   residence,  76. 
part  payment  or  new  promise,  75. 

silent  acquiescence  not  sufficient,  75. 
payment  of  interest,  75. 
may  be  rebutted  by  parol  evidence,  75. 
raised  in  twenty  years,  77. 
pro  tanto;  strict  foreclosure  is  when,  964. 


GENERAL    INDEX.  2001 

References  are  to  Sections.. 
PAYMENT— coniinucd. 
proved  by  parol,  476. 

release;  of  part  of  premises;  defense  of,  478. 
application  of  proceeds,  480. 
what  constitutes,  478. 

knowledge  of  prior  conveyance  of  other  part;  efifect,  479. 
renewal  note  is  not,  469. 
stays  foreclosure  proceedings,  583. 
tender  of.    See  Tender. 

to  foreign  personal  representative  cancels  lien,  126. 
to  mortgagee ;  not  invalidated  by  recording  of  assignment,  416. 
to  mortgagee's  heirs ;  no  defense  against  administrator,  469. 
to  sheriff,  1176. 
to  whom  to  be  made,  1176. 
in  Federal  courts,  1176. 
to  sheriff,  1176. 
what  constitutes ;  requisites  and  sufficiency,  469. 

with  funds  of  third  person ;  for  purchase  of  mortgage  for  latter,  not 
a  satisfaction,  477. 
PENDENCY. 

of  action  at  law  on  notes;  when  bars  foreclosure,  391,  393. 
of  action  or  foreclosure.    See  Lis  Pendens. 
PENDENTE  LITE.     See  Lis  Pendens. 

purchaser  not  necessary  defendant,  177. 
PENNSYLVANIA. 

action  for  debt  maintainable  in  before  foreclosure,  12. 
trial  by  jury  in  on  mortgage  foreclosure,  19. 
PERSONAL   PROPERTY. 

affixed  to  freehold  does  not  pass  on  foreclosure,  when,  716. 
fixtures.     See  Fixtures. 
growing  crops.     See  Emblements. 
vests  in  personal  representatives,  not  in  heirs,  192. 
PERSONAL  REPRESENTATIVES.     See  Executors  and  Administra- 
tors, Etc. 
Judgment  for  Deficiency. 

can  not  be  rendered  against,  740. 
in  Mississippi  may  be,  733. 
liability  for  deficiency,  733,  740. 

of  assignee  of  undischarged  prior  mortgage,  proper  defendant,  211. 
of  mortgagee  may  foreclose,  when,  120. 
presentation  of  mortgage  claim  to,  44. 
PLACE. 

of  posting  notice ;  sufficiency  of  affidavit  as  to,  552. 
PLACE  OF  TRIAL.     See  Trial;  Venue. 
PLAINTIFFS.     See  Parties. 
Mortg.  Vol.  II.— 126. 


2002  GENERAL    INDEX, 

References  are  to  Sections. 

PLEADING.    See  Answers  and  Defenses;  Complaint,  and  the  various 

other  pleadings, 
in  strict  foreclosure,  975. 

non  est  factum  to  put  in  issue  execution  of  mortgage,  394. 
PLEDGE. 

of  mortgage ;  as  collateral  security,  104. 
claim  of  pledgee  in  surplus,  882. 

priority,  883. 
foreclosure,  complaint,  349. 

defenses,  419. 
pledgor  or  pledgee  may  foreclose,  104,  106. 
pledgee  is  a  necessary  party,  105. 

pledgor  or  pledgee  refusing  to  join  in  its  foreclosure,  a  nec- 
essary defendant,  187. 
POSSESSION. 

by  assignee  of  mortgagee  in  possession  may  be  retained  until  mort- 
gage debt  satisfied,  812. 
By  Mortgagee. 

for  twenty  years  raises  presumption  of  foreclosure,  83. 
may  be  retained  until  mortgage  debt  satisfied,  85. 
delivering  to  purchaser,  722. 
during  period  allowed  for  redemption,  1072. 
obtained  by  summary  process,  722>. 
of  personal   property  vests  in  personal   representatives,  not  in  heirs, 

192. 
purchaser  at  foreclosure  sale  entitled  to,  699. 
remains  in  mortgagor  until  conveyance  upon  sale,  13. 
summary  proceedings  to  obtain,  962. 
writ  of  assistance,  725. 
when  granted,  725. 
POSTPONEMENT  OF  SALE, 
for  want  of  bidders,  937. 
on  sale  by  advertisement,  937. 
POWER. 

Of  Sale  in  Mortgage. 

application  of  statute  of  frauds,  912. 

as  affecting  right  to  redeem,  1052. 

as  power  coupled  with  an  interest,  324. 

avoiding  and  setting  aside,  325,  617. 

deed  on  sale,  322. 

defects  in  sale  under,  323. 

effect  of  death  of  mortgagor  or  owner  of  equity  of  redemption, 

324. 
effect  of  recording,  324. 

effect  on  jurisdiction  of  courts  of  equity,  18. 

general    discussion    of    and    foreclosure    under.      See    Statutory 
Foreclosure. 


GENERAL    INDEX.  2003 

References  are  to  Sections. 
TOWER— continued. 

Of  Sale  in  Mortgage — continued. 

in  trust  deed ;  effect  of  death  of  creditor  secured  by,  324. 

irregularity  in,  638. 

is  cumulative  remedy,  310. 

loss  of  mortgage  as  affecting,  324. 

nature  and  effect  generally,  310. 

not  impaired  by  recovery  of  judgment  upon  debt,  310. 

not  preclude  foreclosure  by  action,  310. 

notice  of  sale  under,  853. 

contents  of,  853. 
redemption,  right  of  on,  310,  1052. 
revoked  by  death  of  mortgagor,  324,  740. 

Georgia  rule,  324. 
rights  of  purchasers  at  sale  under,  321. 
Sale  Under. 

application   of   statute   of    frauds,  912. 
contents  of  notice  of,  853. 
irregularity  in,  638. 
redemption,  right  of  on,  310,  1052. 
rights  of  purchasers,  321. 
setting  aside  and  avoiding,  325,  617. 
setting  aside  and  avoiding,  325. 
valid  exercise  of,  319. 

presumptions  as  to,  319. 
void  and  voidable  sales  under,  323. 
who  may  purchase  at  sale  under,  320. 
to  release  restriction  reserved  to  mortgagor,  912. 
extinguished  by  sale  for  breach,  912. 
PRAYER.     See  Answer;  Complaint. 

for  excessive  relief ;  as  rendering  complaint  demurrable,  354. 
for  general  relief ;  as  entitling  party  to  counsel  fees,  354. 

what  relief  granted  under,  354. 
in  complaint,  354. 
judgment  broader  than,  354. 
PRESUMPTION.     See  also  Evidence. 

as  to  state  in  which  lands  are  situated,  359. 
of  delivery  arising  from  possession,  .394. 

not  overcome  by  denial  on  foreclosure,  394. 
Of  Payment. 

accorded  by  lapse  of  time,  73. 

from  adverse  possession  by  several  successive  owners,  77. 
by  mortgagor  not  conclusive,  75. 
raised  in  twenty  years,  77,  79,  80. 


2004  GENERAL   INDEX. 

References  are  to  Sections. 
PRESUMPTION— continued. 
Of    Payment — continued 

from  adverse  possession ;  rebutted  by  parol  evidence,  75. 
rebutted  by  payment  of  interest,  75. 
circumstances  explaining  delay,  76. 
alien  prevented  by  war,  76. 

plaintiff   ignorant  of   defendant's   residence,   76. 
relationship  between  parties,  76. 
part  payment  or  new  promise,  75. 
silent  acquiescence  not  suflficient,  75. 
from  possession  by  mortgagor  of  mortgaged  premises,  75. 
not  raised  by  completion  of  limitation  against  remedy  on  the  debt, 

80. 
raised  by  mortgagor's  adverse  possession   for  twenty  years  may 

be  repelled  by  proof,  75. 
raised  by  twenty  years  adverse  possession  by  mortgagor,  74. 
time  sufficient  to  raise,  73. 
PRINCIPAL  AND  AGENT. 

demand  made  by  agent ;  agency  denied,  462. 

possession  of  note  not  sufficient  proof,  462. 
embezzlement  of  proceeds  b}'  agent  as  a  defense,  401. 
estoppel  of  mortgagor  to  deny  authority  of  agent,  451. 
fraud  of  agent  of  mortgagee;  misrepresentation,  421, 

relief  on  foreclosure,  421. 
mortgage  entrusted  to  agent  to  procure  loan,  ^03. 

misappropriation ;  consideration,  403. 
parol  extension  by  agent  of  time  to  pay  interest,  328, 
payment  by  third  person;  ratification,  468. 
purchase  at  foreclosure  sale  by  agent,  664. 

compelling  agent  to  complete  purchase,  664. 
f»RINCIPAL  AND  SURETY. 

defense  on  foreclosure ;  mortgage  given  for  indemnity  only,  465. 
duress;  defense  available  to  surety  in  foreclosure,  436. 
foreclosure,  388. 

objection  by  surety  to  want  of  service  on  persons  interested,  388. 
indemnity  mortgage,  361. 

complaint  in  foreclosure,  361. 
joint  liability,  483. 

controversy  as  to  principal  liability  not  determined  on  foreclosure, 
483. 
right  of  surety  for  debt  to  object  to  defect  of  parties,  389. 
surety;  for  mortgage  debt  may  foreclose.   111,  112. 

grantor  discharged  by  extension  of  time  without  consent  to  gran- 
tee assuming  mortgage,  243. 
judgment  by  confession  as   indemnity,  875. 

lien  on  surplus;  priority,  875. 
may  alone  foreclose  indemnity  mortgage,  90. 


GENERAL    INDEX.  2005 

References  arc  to  Sections. 

PRINCIPAL  AND  SVRKTY— continued. 

Surety — continued. 

may  foreclose;  where  grantee  has  assumed  mortgage,   112. 
where  he  has  guaranteed  payment,   111. 
where  junior  interest  redeems  from  senioi  Interest,  113. 
of  mortgage  debt ;  rights  as  to  costs,  984. 
PRINTED. 

synonymous  with  word  "published,"  547. 
PRINTER. 

sufficiency  of  affidavit  by,  552. 
PRIOR  INCUMBRANCERS. 

as  parties.     See  Parties. 

entitled  to  costs,  when,  989. 

may  answer,  when,  384. 

not  affected  by  foreclosure  sale,  700. 

not  parties,  rights  of,  862.    • 

priority,  how  determined,  857. 

right  to  file  a  cross-complaint.  384. 
PRIORITY. 

as  between  different  mortgages  for  same  debt,  308. 

claims  as  to ;  what  proper  answer  in  foreclosure,  489. 

equitable  priorities  between  subsequent  mortgagees,  864. 

how  determined,  857. 

of  equitable  mortgage  over  subsequent  judgments,  330.  331. 
PRIOR  MORTGAGE. 

reduction  of  amount  of   as  consideration  for  extension  of  time  for 
payment,  467. 
PROCESS. 

service  by  publication,  739. 

effect  on  deficiency  judgment,  739. 

Service  on  Married  Woman. 

where  mortgage  on  community  property,   158. 
PROFITS.     See  Rents  and  Profits. 

set-off;  against  mortgage  debt;  agreement  to  apply,  447. 
PROOF. 

burden  of ;  as  to  payment  on  defendant,  476. 

on  party  moving  to  set  aside  foreclosure  to  show   fraud,  645. 

of  publication ;  sufficiency  of,  552. 

of  service.     See  Summons,  Service  of. 
PROPERTY. 

mortgaged ;  description  of  in  complaint  and  decree,  357. 
PUBLICATION.     See  Summons,  Service  of. 

in  legal  paper;  sufficiency  of  sheriff's  return  as  to,  555. 

incorrect  as  invalidating  sale,  547. 

proof  of ;  sufficiency  of,  552. 
PUBLIC  LANDS. 

patent  to  mortgagor  inures  to  mortgagee,  451. 


2006  GENERAL    INDEX. 

References  are  to  Sections, 

PUBLISHED. 

synonymous  with  word  "printed."  547. 
PUBLISHER. 

affidavit  of ;  variance  between  sheriff's  return  and,  S52. 
PUISNE  INCUMBRANCER.     See  Subsequent  Incumbrancers. 
PURCHASE  MONEY. 

mortgage  to  secure,  329. 

by  infant ;   foreclosure.  396. 

false  representations  as  defense  in  foreclosure,  425. 
foreclosure  of ;  wife  not  signing,  a  necessary  defendant,    156. 
fraud ;   as  to  number  of  acres,  428. 
defense  of,  in  foreclosure,  422,  424. 

false  representations  as  to  the  extent  and  boundaries,  429. 
takes  precedence  over  prior  judgment  against  mortgagor,  182. 
PURCHASER.     See  Assignment;  Vendor  and  Purchaser. 
assuming  mortgage.     See  Assumption. 
at  foreclosure  sale.    See  Sale. 

claim  on  surplus  when,  848.    See  Surplus  Moneys. 

Louisiana  rule,  848. 
efifect  on  of  setting  sale  aside,  652. 

may  attack  validity  of  judgment  against  mortgagor,  1087. 
obligations  of,  697. 

party  to  suit  to  determine  priority  and  validity  of  liens,   136. 
possession  during  period  allowed  for  redemption,   1072. 
accounting  on  redemption.  1072. 
at  sale  under  junior  mortgage ;   acquires   only   equity   of   redemption, 

700. 
necessity  for  parting  with  consideration  to  become  bona  fide  purchaser, 

686. 
not  bound  by  extension  of  time  to  redeem,  1145. 
obtains    no   legal   title    where    nothing    is    due   upon    mortgage    when 

foreclosed,  701. 
of  equity  of  redemption ;  cannot  avail  himself  of  defense  of  duress, 
436. 
necessary  party  to  make  decree  valid  as  to  him,  146. 
right  to  defense  of  illegal  consideration,  406. 
refusal  to  obey  order  of  court  to  complete  purchase  as  contempt,  664. 
right  to  be  reimbursed  for  improvements  where  sale  is  set  aside,  652. 
right  to  bring  action  for  possession;  effect  of  delay  of  several  years, 

722. 
right  to  chandeliers  and  brackets  on  foreclosure  sale,  715. 
right  to  green  houses  on  mortgaged  property,  715. 
right  to  refund  for  taxes  on  resale,  652. 
under  sale  had  without  sufficient  power  of  sale,  952. 
RAILROADS. 

bonds  of  ;  not  within  scope  of  this  work,  103. 

eminent  domain,  compensation  ;  payment  to  wrong  person,  471. 


GENERAL    INDEX.  2007 

References  are  to  Sections. 

RAILROADS— continued. 

foreclosure  not  barred  bj-,  471. 

mortgages,  redemption  not  an  incident  of,  1030. 

receipt  of  rent  by  receiver  from  lessee,  effect,  702. 

redemption  in  case  of,  1168. 

redemption  not  an  incident  of  railroad  mortgages,  1030. 

right  of  way  across  mortgaged  lands  not  to  be  exempted  in  decree 

when,  711. 
right  to  redeem  from  mortgage  by  paying  portion  of  debt,  1196. 
Sale  Of. 

free  from  debts,  843. 

property  under  mortgage  foreclosure,  635. 
RATIFICATION. 

by  vendee,  of  fraudulent  sale  of  land,  425. 
of  mortgage  by  infant,  395. 
REAL  PROPERTY. 

fixtures.     See  Fixtures. 

permanent  improvements  pass  to  purcliascr  on  foreclosure.  716. 
purchase  money  mortgage,  329. 
vests  in  heirs  or  devisees,  192. 
RECEIVER. 

accounting;  who  entitled  to  rents,  etc..  827. 
additional  or  second  receiver,  810. 

appeal;   continuance   of   receivership  during   pendency,  826. 
from  order  appointing,  779. 
not  lie  to  appointment,  810. 
Appointment. 

after  assignment  by  mortgagor  for  benefit  of  creditors,  819. 

after  decree  of  foreclosure,  822. 

after  sale,  823. 

against  mortgagee  out  of  possession,  816. 

subsequent  incumbrancers,  816. 
appeal  from  order;  time  of,  779. 
application  and  contents ;  what  must  be  shown,  773. 
demand  for  appointment  not  necessary,  773. 
ex  parte,  772. 
notice  of,  771. 
on  what  papers,  770. 
at  instance  of  subsequent  incumbrancers,  where   first  mortgagee 

out  of  possession,  816. 
before  answer,  821. 

by  court;  eligibilitj' ;  qualifications,  782. 
order  of ;  appeals.  779. 

containing  special  provisions,  779. 
appeal ;  time  of,  779. 
application   for  settlement,  779. 
entry ;  filing.  779. 


2008  GENERAL    INDEX. 

References  are  to  Sections. 

RECEIVER— conhHM^-rf. 

Appointment — continued. 
By  court — continued. 

order  of — continued. 

containing  special  provisions — continued. 

opposition  and  proposed  amendments,  779. 
service  of  copies,  779. 
should  fix  penalty  of  bond,  779. 
submission  of  copy  to  adversary,  779. 
form  and  contents,  779. 
defining  powers,  780. 

delivery  by  mortgagor  of  possession  to  receiver,  780. 
description  of  property,  780. 

direction    to    state    accounts    and    pay    balance    into 
court,  780. 
without  prejudice  to  prior  incumbrancers,  780. 
payment  of  interest  on  prior  incumbrances,  780. 
to  be  determined  by  court,  779. 
general  terms  of  to  be  prescribed  when  granted,  779. 
in  the  alternative,  780. 

judge   may   draw,   or   allow    form  submitted   by   moving 
party,  779. 
proposal  of  names,  781. 
by  referee  or  master,  775  et  seq. 
causes  or  grounds ;  generally,  792. 

accumulation  of  taxes  and  interest,  798. 

bad  faith  or  fraud  of  mortgagor,  792,  799. 

danger  of  loss  or  injury,  797. 

inadequacy  of  security,  793. 

injunction    restraining    sale,    800. 

insolvency  of  mortgagor,  793. 

insolvency  of  mortgagor ;  New  Jersey  rule,  794. 

insolvency  of  person  liable  for  deficiency,  792. 

insufficiency  of  premises  to  pay  debt,  792. 

prima  facie  equitable  right  to  property,  792. 

rents  and  profits  expressly  pledged,  792, 

discretion  as  to  appointment,  792. 
waste,  799. 

what  must  be  shown,  762. 
date  of ;  title  vests  from,  783. 

does  not  affect  right  to  foreclose  for  breach  of  interest  clause,  43. 
duration ;  continuance  after  final  decree,  822. 
grounds  for  refusal,  801  et  seq. 

ability  to  sell  premises  in  parcels,  802. 
absence  of  lien  on  rents  and  profits,  801. 
adequacy  of  security,  801. 
cross-complaint  by  defendant,  807. 


GENERAL    INDEX.  2009 

References  arc  to  Sections. 
RECEIVER— continued. 

Appointment — continued. 

grounds    for   refusal — continued. 

injury  to  prior  -encumbrancer,  801. 

laches  of  mortgagee,  803. 

legal  title  in  mortgage,  811. 

mortgagee  in  possession,  812-814. 

redemption  by  subsequent  mortgagee,  813. 

not  on  application  of  defendant,  807. 

not  on  application  of  one  defendant  against  another,  801,  807. 

possession  of  stranger  to  suit,  804. 

property  not  wasted,  801. 

rents  and  profits  already  applied  to  payment  of  debt,  801. 

security  given  for  rents,  etc.,  801. 

set-off  against  mortgagee,  805. 

solvency  of  mortgagor,  801. 

taxes  paid,  801. 

validity  of  mortgage   impeached,  803. 

when  rents  can  not  be  applied,  806. 

where  bill  is  filed  to  redeem,  805. 

whole  debt  not  due,  802. 
interests  of  parties  govern,  763. 
junior   encumbrancer   in   possession,   818. 

jurisdiction  of  can  not  be  interfered  with  without  leave  of  the 
court  appointing,  788. 

discretion,  792. 

doctrine  in  various  states,  766. 

must  be  made  by  court,  765. 

no  other  court  can  interfere  after  appointment,  765. 

not  by  court  commissioner,  765. 

not  by  United  States  court,  where  one  already  appointed  by 
state  court,  765. 

not  interfered  with  by  assignee  in  bankruptcy,  765. 

not  pending  demurrer  or  defense,  767. 

of  chancery,  769. 

continuance  by  code,  769. 

of  court  generally,  765. 

of  federal  courts,  767. 

pending  action,  765. 

term  of  court;  vacation,  765. 
mode  of ;  on  motion  or  petition,  768. 

when  and  by  whom,  764. 
mortgagee  in  possession,  814. 

redemption  by  subsequent  mortgagee,  813. 
necessity  for  notice  of,  771. 
not  appealable,  810. 


2010  GENERAL    INDEX. 

References  are  to  Sections, 
RECEIVER— contimted. 

Appointment — continued. 

not  appointed  if  property  sufficient  to  pay  debt,  etc.,  763. 
nor  if  party  liable  is  solvent,  763. 

nor  if  security  given  to  account  for  rents  and  profits,  763. 
not  during  time  allowed  for  redemption,  808. 
notice  of  application ;  necessity,  820. 
objections  to,  774. 

defect  of  parties,  774. 
misjoinder,  774. 

pendency  of  plea  to  amended  bill,  774. 
unverified  answer ;  sufficiency,  774. 
who  may  object,  774. 
object  of,  760. 

of  deceased  mortgagor's  estate,  796. 
on  whose  application ;  application  of  defendant,  807. 
junior  encumbrancers,,  817,  818. 
party  having  no  interest   in  premises,   785. 
stranger  to  suit,  819. 
various  lienholders  or  mortgagees,  809. 
operation  and  effect,  785. 

determines  no  rights,  785. 
extent  of  receiver's  rights,  785. 

necessity  of  demand  for  delivery  of  possession,  785. 
not  divest  accrued  rights  of  third  persons,  785. 
removes  property   from  occupant's  possession,  785. 
resemblance  to  injunction.  785. 
pending  appeal,  799. 
possession ;  interference  with,  824. 
provision  in  mortgage  for ;  invalidity,  762. 
record,  pleadings  and  evidence  to  govern,  763. 
reference  to  appoint  receiver;  considered  appointed  from  date  of 
order  of,  778. 
duty  of  referee  to  approve  and  file  bond,  778. 
necessity  of  confirmation  of  report  to  complete  appointment, 

783. 
order  of  appointment  by  referee,  778. 
order  should  require  notice  to  be  given,  775. 

waiver  of  notice  by  appearance,  775. 
report;   confirmation   unnecessary,   778. 
can  not  be  excepted  to,  776. 
duty  to  file ;  contents,  778. 
exceptions   and   objections;    review,   778. 
filing  of  completes  appointment,  778. 
necessity;  contents,  775. 
need  not  be  confirmed,   776. 
objections  to,  776. 


GENERAL    INDEX.  2011 

References  are  to  Sectioris. 

RECEIVER— continued. 

Appoixtmext — continued. 

reference   to   appoint — continued. 
report — continued. 

order  of  appointment  on,  777. 
setting  aside,  776. 
residence  of  referee,  775. 
review  of  report;  notice;  application,  778. 
title  vests  by  relation  from  date  of  order,  783. 
refusal  must  be  on  merits,  and  not  on  technical  grounds,  763. 
remedy  of  parties  claiming  title  paramount,  825. 
right  of  mortgagee,  758. 
right  to ;  at  whose  instance,  761. 

during  redemption  period,  808. 
rules  as  to  when  receiver  will  or  will  not  be  appointed,  763. 
rules  of  chancery  practice  to  be  followed,  775. 
second  or  additional  receiver,  810. 
sufficiency  of  evidence  to  warrant,  763. 
time  of  appointment,  820  et  seq. 

after  decree  of  foreclosure,  822. 
after  hearing  or  rehearing,  821. 
after  sale,  823. 

not,  as  a  general  rule,  before  answer,  821. 
not  before  service  of  summons,  820. 
not  prior  to  commencement  of  action,  820. 
not  without  notice  to  parties,  820. 
when  not  before  final  judgment,  820. 
when  not  before  hearing,  821. 
title  vests  from  time  of,  778. 
to  succeed  trustee  refusing  trust,  822, 
when  made,  792. 
who  entitled  to  notice  of,  771. 
BoxD. 

duty  of  referee  to  approve  and  file,  778. 
execution  ;  approval ;  filing,  784. 
necessity,  784. 

not  approved  by  clerk  in  vacation,  765. 
penalty  should  be  fixed  in  order  of  appointment,  779. 
removal  for  insufficient  sureties ;  appeal,  784. 
sureties,  784. 
compensation;  commissions,  828. 
continuance;  during  pendency  of  appeal,  826. 
costs  on  appointment  of,  999. 
discharge;  notice  to  parties  interested.  830. 

when  allowed,  824,  829. 
duration  of  office;  continuance  after  final  decree,  822. 


2012  GENERAL    INDEX. 

References  are  to  Sections. 
R'ECEIWER— continued. 
Embezzlement  by. 

loss  falls  where,  791. 
injunction  restraining  sale;  appointment  of  receiver  in  case  of,  800. 
junior  incumbrancers ;  appointment  on  application  of,  813,  816  et  seq. 

in  possession ;  appointment,  818. 
liabilities  of,  791. 

embezzlement ;  waste,  791. 

excess  of  authority,  791. 

neglect  or  breach  of  dut\-,  791. 

same  as  other  receiver,  791. 
mortgagee  in  possession ;  when  appointment  against,  812  et  seq. 
mortgagee  not  liable  for  wrongdoing  by,  791. 
necessary  defendant  in  foreclosure,  172. 
of  corporation ;  a  necessary  defendant,  172. 

may  foreclose  mortgage,  118. 
of  mortgagee;  as  necessary  party  to  redemption,  1234. 
of  rents  and  profits  pendente  lite,  827. 
party  applying  for  must  show  what,  792. 
possession  by;  nature  of,  787. 

not  agent  of  party  securing  appointment,  787.  ,^ 

not  interfered  with  without  leave  of  court  appointing,  787. 

officer  of  court,  787. 

validity  as  against  attaching  creditors,  787. 
power  of  circuit  court  to  appoint,  766. 
powers  and  authority  not  interfered  with,  except  by  superior  court, 

765. 
redemption ;  not  appointed  during  time  allowed  for,  808. 
removal ;  causes ;  notice,  etc.,  829. 

insufficient  sureties ;  appeal,  784. 
rents  and  profits ;  lien  of  mortgagee  on,  as  ground  for  appointment, 
795. 

right  to ;  power  to  collect,  etc.,  790. 
rights,  powers  and  duties;  jurisdiction,  785,  ct  seq. 

disbursement  of  money,  788. 

disregard  of  individual  interests,  789. 

expenditures,  788. 

guidance  and  protection  of  court,  789. 

instruction  as  to  duties,  789. 

interference  with  possession  of,  824,  825. 

is  officer  of  court,  787. 

nature  of  possession,  787. 

none  in  case  of  failure  to  qualify,  786. 

not  representative  of  party,  787. 

obedience  to  orders  of  court,  789. 

order  gives  necessary  means  for  enforcing,  786. 

payment  of  rents  into  court,  789. 


GENERAL   INDEX.  2013 

References  are  to  Sections. 
RECEIVER— continued. 

Rights,   Powers   and  Duties — continued. 

possession  as  against  attaching  creditors,  787. 
possession  not  interfered  with  without  authority  of  court  appoint- 
ing, 787. 
remedy  of  parties  claiming  title  paramount,  825. 
to  be  governed  by  equitable  interests  of  parties,  789. 
to  lease  premises,  788. 
to  rents  and  profits,  788  ct  seq. 

as  against  mortgagor;  power  to  collect,  790. 
to  satisfy  and  discharge  securities,  788. 
to  sue  and  be  sued,  788. 
second  or  additional ;  when  appointed,  810. 
the  office ;  duration,  759. 

nature  of ;  duties  generally,  759,  760. 
title  of ;  when  vests,  778,  783. 
when  appointed,   1232. 

when  will  be  appointed  without  notice,  771. 

wrongfully  appointed ;  costs  cannot  be  taxed  against  premises,  628. 
RECLAIMED  STRIP  OF  LAND  ON  WATER  FRONT. 

title  to  on  foreclosure  of  riparian  mortgage,  703. 
RECORD. 

complaint;  allegation  as  to  recording,  339,  341. 
date  of  as  governing  order  of  redemption,  1123. 
discharge ;  by  collateral  assignee ;  when  void,  349. 
eflfect;  how  alleged  and  proved,  477. 
extinguished  by,  468. 
presumption  of  payment ;  rebuttal,  476. 
mistake;  as  to  facts  contained  in;  relief  on  foreclosure,  430. 
mortgagee    not   bound    to    search    for    subsequent    incumbrances    and 

transfers,  602. 
necessity  of  mortgagee  examining  for  subsequent  incumbrances,  852. 
of  assignment ;  need  not  be  averred,  345. 
of  equitable  assignment  of  mortgage;  notice,  468. 

necessity  to  protect  assignee  against  payment  to  mortgagee,  468. 
of  mortgage ;  defective ;  defense  in  foreclosure,  398. 
in  wrong  book  or  register,  398. 
out  of  order  required  by  law,  398. 
of  proofs  of  statutory  foreclosure,  958-960. 
on  foreclosure  by  foreign   legatee   of  bond  and  mortgage,   does   not 

show  perfect  title,  126. 
priority;  presumption  as  to;  distribution  of  surplus,  8C4. 
public  records;  reference  to,  in  foreclosure  complaint  for  description 

of  property,  358. 
statutory  foreclosure ;  necessity  to  record  mortgage,  913. 
effect  of  failure,  913. 
\otice;  description  of  date  and  place  of  record,  928. 


2014  GENERAL   INDEX. 

References  are  to  Sections. 
RECORD— Continued. 

time  and  mode  of,  398. 
time  of;  as  defense  in  foreclosure,  398. 

unrecorded  mortgage;  priority  over  subsequent  judgment,  868. 
RECONVEYANCE. 

requiring  of  other  titles  on  redemption,  1181. 
RECOUPMENT.     See  Answers  and  Defenses;  Set-off  and  Counter- 
claim. 
REDEMPTION. 

a  creature  of  the  law,  1031. 

a  favorite  of  equity,  1033. 

abandonment  of,  valid  when,  1036. 

accepting  part  payment,  effect  on  right  of,  1070. 

accounting  for  rents  and  profits  on,  1183.    See  Rents  and  Profits. 

when  not  required,  1183. 
accounting  for  value,  1241. 
Action  to  Redeem. 

bill  to  redeem.  1213. 
dismissal  of,  1215. 

delay  as  a  ground  for,  1215. 
effect  of,  1215. 
error  to  direct  when,  1215. 
evidence  on,  1216. 

governed  by  equitable  rules,  when,  1213. 
in  Alabama,  1214. 
in  Louisiana,  1213. 
in  Maine,  1214. 
in  New  Jersej',  1214. 
irr»gularities  waived  by,  1217. 
jurisdiction  of  court,  1218. 
multifariousness,  1219. 
Rents.    See  Rents  and  Profits. 

excess  over  improvements  can  not  be  recovered  when,  1214. 
requisites  of,   1220. 
tender,  1220. 

formal  necessary  w-hen,  1220. 
indispensability  of,  1220. 
Nebraska  doctrine,   1220. 
not  necessary  to  maintain  bill,  when,   1220. 
in  action  by  grantee,  1221. 
in  action   by   junior  lienor,    1222. 
in  Arkansas,  1220. 
in  Illinois,  1220. 
in  Indiana,  1220. 
in  Missouri,  1220. 
in  New  Hampshire,  1220. 
in  Tennessee,  1220. 


GENERAL    INDEX.  2015 

References  are  to  Sections. 

REDEMPTION— <:o»h"«M^d. 

Action  to  Redeem — continued. 
requisites  of — continued. 

statutory  provisions,  1223. 

time  within  which  to  be  brought,  1224. 

what  purchaser  must  show  in  separate  action,   1214. 

when  to  be  brought,  1225. 

bill  dismissed  for  laches,  when,  1224. 
after  foreclosure,   1150  et  seq. 
Agreement. 

between  parties,  effect  on  right  of,  1058. 
waiving  right  of  set  aside,  when,  1036. 
subsequent  agreement,  1038. 
allowed    where   defendant   was    within   enemy's    lines   when   sale   oc- 
curred, nil. 
allowed  when  discharge  not  decreed,  1107. 
Amount  Payable  On. 

after  foreclosure,  1173. 
by  judgment  creditor,  1087. 
error  in  ascertaining,  1202. 
exceptions  to  the  general  rule,  1173. 
an  incident  of  every  mortgage,  1029. 
appeal  and  new  trial  on,  1242. 
as  to  when  may  be  made,  1055. 
assessments,  payment  of,  1185. 
Assignment. 

of  mortgage  not  a  right  on,  1035. 
to  prevent;  fraud,  414. 
barred  by  twenty  years  possession  by  mortgagee,  83. 
Barring  right  of. 

by  adverse  possession,  1252. 

possession  by  the  mortgagee  for  time  designated  in  statute, 

1252. 
question  of  adverse  possession  depends  on  intention,  1252. 
what  constitutes  adverse  possession,  1252. 
by  estoppel,  1246. 
by  foreclosure,  1244. 
by  judgment,  1245. 
by  laches,  1248. 
by  lapse  of  time,  1247. 

actual  possession  for  twenty  years  by  mortgagee,  83,   1247. 
four  years  elapsing  from  time  bars  when,  1247. 
sixteen  years  bars  when,  1247. 
under  New  Jersey  statute.   1247. 
by  omitting  covenant  to  redeem,  as  to,  1151. 
by  purchase  by  mortgagee,  1253. 


2016  GENERAL    INDEX. 

References  are  to  Sections. 

REDEMPTION— ro;;^/;n<erf. 

Barring   Right  of — continued. 

by  statute  of  limitation,  83,  1249. 
when  begins  to  run,  1250. 
disability,  1251. 

absence  from  the  state,  1251. 
coverture,  1251. 
infancy,    1251. 
insanity,   1251. 
public  war,  1251. 
fraud  when,  1251. 
general  rule,  1251. 
by  twenty  years  possession  by  mortgagee,  83,  1247,  1249. 
tender  does  not  revive,  1254. 
waiver,  1255. 

by  acknowledgment,  1256. 

parol  admission  by  mortgagee  estops  denial,  1256. 
by  omitted  judgment  creditor,   184. 

directly  or  by  execution  under  sheriff's  deed,   184. 
not  required  to  pay  costs,  184.     See  Costs. 
by  judgment  creditor  of  mortgagor,  1191. 

need  not  pay  balance  of  mortgage  debt,  1191. 
by  part  owner,  1065. 

extent  of  right,  1065. 
remedy  on,  1066. 
by  subsequent   mortgagee ;   accounting  for  rents  and  profits  may  be 
had,  180. 
from  prior  mortgagee  in  possession ;  appointment  of  receiver,  813. 
to  gain  control  of  rents  and  profits  as  against  mortgagee  in  pos- 
session, 814. 
California  doctrine,  1027. 
circumstances  affecting,   1055. 

agreement  between  parties,  1058. 
conveyance  by  mortgagee,  1062. 
different  ownerships  of  equity,  1065. 

extent  of  right  of  one  party  to  redeem,  1065. 
remedy  on,   1066. 
estoppel  1)1  pais,  1061. 

what  amounts  to,  1061. 
failure  to  make  interested  party  defendant,  1056. 

compelling  redemption  by,  1057. 
payment  after  breach  of  condition,  1060. 
Possession  After  Foreclosure. 
by  creditor,  1073. 
by  junior  lienor,  1074. 
by  assignee  of.  1075. 
conditions  on,  1076. 


GENERAL    INDEX.  2017 

References  are  to  Sections. 
REDEMPTION— coKfnn/^rf. 

Possession  After  Foreclosure — continued. 
circumstances  affecting — continued. 

by  purchaser  during  period  of,  1072. 
accounting.  1072. 
sale  of  equity  of  redemption,  1059. 

effect  on  rights,  1059. 
separate  mortgages  on  separate  tracts,  1064. 
redeeming  from  one  mortgage,  1064. 
EngHsh  rule.  1064. 
statutes  regulating  redemption,  1067. 

accepting  part  payment,  effect  under,  1070. 

constitutionality  of  statute,  1071. 

designating  shorter  time  than  allowed  by,  1068. 

filing  deed  or  certificate  under,  1069. 

in  Arkansas,  1067. 

in  Xevada,  1067. 

mortgagor's  possession  during  period  of  redemption,  1071. 

constitutionality  of   statute   providing  for,   1071. 
possession  by  purchaser  during  period   of  redemption,    1072. 
accounting,  1072. 
two  or  mere  mortgages  on  one  tract,  1063. 
redeeming  from  one  when,  1063. 
common  law  doctrine,  1026. 
compelling  by  interested  party,  1057. 
computation  of  time,  1145. 

conditions  of.     See  Terms,  Conditions,  Etc.,  this  title. 
conditions  on  which  may  be  made,  1139. 
contribution  on.     See  Contribution, 
by  subsequent  grantee,  1210. 
by  widow,  1211. 

exceptions  to  the  general  rule,  1209. 
generally,  1208. 
redemption  without  allowable,  when,  1212. 

where  inconvenient  and  embarrassing,  1211. 
where  land  sold  in  parcels,  1209. 
conveyance  by  mortgagee,  effect  on  right  of,  1062. 
costs  on.     See  Costs. 
as  to,  1011,  1243. 

mortgagee  entitled  to  on  conflicting  evidence,  1243. 
payment  of,   1184. 
covenant  to  redeem  omitted  no  bar  to  right,  1151. 
decision  giving  complainant  time  to  redeem,  1235. 

determination  in  his  favor,  1235. 
decree  on,  1235. 

compelling  junior  mortgagee  to  redeem,  1236. 
conditional  judgment  of,  1235. 
Mortg.  Vol.   II.— 127. 


2018  GENERAL    INDEX. 

References  are  to  Sections. 
REDEMPTlOy:—contiimed. 
Decree  on — continued. 

generally,  1235. 

not  erroneous  because  not  providing  for  sale  on  failure  to  re- 
deem, 1235. 

on  redemption  from  invalid  foreclosure,  1235. 

on  redemption  from  irregular  foreclosure,  1235. 

in  ordinary  bll  to  redeem,  1236. 

Minnesota  rule,  1236. 

on  cross-bill  praying  to  be  allowed  to  redeem,  form  of,  1235. 

special  findings  in,  1235. 

time  of  redemption  after,  1236. 
extension  of,  1237. 
defenses,  1126  et  seq. 

conveyance  to  mortgagee,  1226. 

conveying  wrong  lot,  1227. 

improvements  with  knowledge,  1228. 

mortgage  fraudulent  as  to  creditors,  1229. 

overdue  second  mortgage,  1230. 
definition  of  term,  1024. 
disbursements,  payment  of,  1185. 

effect  of.     See  Terms,  Conditions,  Mode  and  Effect  of,  this  title. 
effect  of  payment,  1176. 
estoppel  in  pais,  effect  on  right.  1061. 
equitable  rights  subject  to,  1034. 
equity  of.     See  Equity  of,  this  title. 

fee  in,  683. 
extension  of  time;  not  binding  on  innocent  purchaser,  1145. 
extinguishment  of,  1053.    See  Barring,  this  title,  1053. 

by  abandonment,  right  of,  1036. 

by  action  and  sale,  1054,  1055. 

by  agreement  of  parties  when,    1036,   1038. 

by  estoppel  in  pais,  1053,  1061.     See  Estoppel  in  pais. 

by  judgment  of  foreclosure  and  sale,  1054,  1055. 

by  laches,  1053. 

by  stipulation,  1038. 

by  subsequent  agreement,  1038. 

by  surrender,  1037. 

by  waiver,  1036. 

evasion  of  equitable  rule,  prohibition,  1045. 

once  effected,  remains   forever  blotted  out,  1053. 
failure  to  fix  time  in  deed,  effect  on  right,  38. 
foreclosure  as  terminating  right  of,  1026. 
foreclosure  of  part  of  single  tract,  308. 

if  mortgage  satisfied,  selling  price  of  property  is  amount  required  to 
redeem,  180. 


GENERAL   INDEX.  2019 

References  are  to  Sections. 

REDEMPTION— co«//;n<^d. 
improvements,  1231. 

allowance  for,  1231. 
infancy,  insanity  or  imprisonment,  not  to  be  counted  as  part  of  the 

time  limited  for  commencing  action  to  redeem,  1148. 
in  strict  foreclosure ;  time,  etc.,  977. 
interest  on  allowed  when,  1214. 
legal  rights  subject  to,  1034. 

mode  of.    See  Terms,  Conditions,  etc.,  this  title.  . 
mode  of  payment,  1176. 
money,  lien,  for,  1051. 
mortgagor  of,  mortgage  in.     See  Merger. 

mortgagor's  equity  of ;  cannot  be  extinguished  by  adversary  proceed- 
ings, 1038. 
mortgagor's  possession  during  period  of,  71. 
nature  and  extent  of  right,  1027. 
necessity  for  notice  of,  1188. 

necessity  of  tender  of  mortgage  debt  with  interest,  1191. 
notice  of  intention  to  redeem,  1188. 
on  bill  by  widow,  1239. 
on  sale  under  power,  right  of,  1052. 

only  remedy  of  omitted  subsequent  judgment  creditor,  184. 
order  of ;  governed  by  date  of  record,  1123. 
origin  of  doctrine,   1026. 
parties  to  action,  1233. 
defendants,  1234. 

assignee  of  mortgage  proper  party,  1234. 
exception  to  the  rule,  1234. 
in  case  of  railway  mortgages,  1234. 
plaintiffs,  1233. 

assignee  of  equity  of  redemption,  not.  1233. 
assignee  of  statutory  right  of  redemption,  not,  1233. 
execution  creditor  not,  when,  1233. 
joinder  of  mortgagees  in  bill,  1233. 

personal    representative   of    deceased   mortgagee   as,    1233. 
parties  to  bill  to  redeem  from  mortgage  to  partnership,  1234. 
party  redeeming  must  pay  amount  due  on  mortgage,  180. 
Payment. 

after  breach  of  condition,  1060. 
for  improvements,  1189. 
of  additional  sum  and  taking  title,  1046. 
required  by  widow,  1192. 
period  of,  713. 

title  of  purchaser  during,  713. 
possession  after  foreclosure,  1073. 
by  creditor,  1073. 
by  junior  lienor,  1074. 


2020  GENERAL    INDEX. 

References  are  to  Sections. 

REDEMPTION— coil  f/n!/£'rf. 

Possession  After  Foreclosure — continued. 
by  junior  lienor's  assignee,  1075. 
condition  on  redemption,  1076. 
Purchaser. 

at  foreclosure  sale,  junior  mortgagee  may  redeem,  1117. 
English  doctrine,  1117. 
Indiana  doctrine,  1117. 
at  execution  sale  may  redeem,  1116. 
in  Alabama,  1116. 
in  Arkansas,   1116. 
in  Indiana,   1116. 
in  Kentucky,   1116. 
in  Mississippi,   1116. 
in  United  States  Courts,  1116. 
in  possession  during  period  of,  must  account,  1072. 
receiver  of  mortgagee  as  necessary  party,  1234. 
receiver  on,  808,  1232. 

not  appointed  during  time  allowed  for,  808. 
when  appointed,  1232. 
reciprocal  right  of  with  right  to  foreclose,  1028. 
redeeming  but  a  part  of  mortgaged  land,  1180. 
redeeming  whole  of  mortgaged  land,  1179. 
Redemptioner. 

redemption  from,  1200. 
rents  and  profits.    See  Rents  and  Profits,  1183. 

accounting  on  redemption,  1183. 
repairs,  allowance  for  on  redemption,  1182. 
requiring  conveyance  of  other  titles,  1181. 
right  of,  1025,  1039. 

a  creature  of  the  law,  1031. 

a  favorite  of  equity,  1033. 

a  rule  of  property,  1041. 

abandoned  by  stipulation  when,  1036. 

agreement  waiving,  1036. 

will  be  set  aside  when,  1036. 
an  equitable  one,  1033. 
an  estate  in  lands,  1039. 

a  rule  of  property,   1041. 
/  Alabama  doctrine,   1040. 

an  incident  of  every  mortgage.  1029. 
exceptions  to  the  rule,  1030. 
''  in  railroad  mortgages,  1030. 

where  equity  fixed  by  court  in  decree,  1030. 
assignee  of  equity  of  redemption  after  foreclosure  sale  to  redeem, 

1082. 
assignment  of  mortgage  not  included,  1035. 


GENERAL    INDEX,  2021 

References  are  to  Sections, 

REDEMPTION— continued. 

Right  of — continued. 

Barring  by. 

abandonment,  1036. 
agreement,   1036.   1038,   1053. 
subsequent  agreement,  1038. 
surrender,   1037. 
stipulation,   1038. 
waiver,  1036. 
circumstances  affecting.  See  Circumstances  Affecting  this  title, 
continues  until  sole,  1137. 
definition,  1025. 
foundation  of  doctrine,   1050. 
judgment  creditor  to  redeem,  1087. 
mortgagor  to  redeem  one  parcel,  1180. 
object  of,  1026. 

one  who  acquires  an  estate  in  part  of  mortgaged  premises  to  re- 
deem, 1102. 
person  interested  not  made  party,  1056.     See  Who  may  Redeem 

this  title, 
reciprocal  with  foreclosure,  1028. 
released  how,  1039. 
Restriction. 

to  particular  person,  1042. 
to  particular  time,  1043. 

by  contract  after  breach,  1044. 
Pennsylvania  doctrine,  1043. 
stipulations  barring,   1038. 
surrender  of  right  valid  when,  1037. 
waiver  of  right  by  stipulation,  valid  when,  1042. 
right  must  usually  be  exercised  within  ten  years   from  maturity 

of  mortgage  debt,  180. 
right  of  omitted  wife  does  not  accrue  till  death  of  husband,  156. 
right  of  owner  of  equity  of  redemption  terminated  by  sale  and 

confirmation,  680. 
right  to  assignment  of  mortgage  on,  1190. 
rule  governing  courts  in  construing,  1049. 
waiver,  1036. 
widow  to  redeem,  1134. 
wife  to  redeem,  1133. 
right  to  appointment  of  receiver  during  redemption  period,  808. 
sale  not  decreed  on,  1240. 
sale  of  equity  of  redemption,  1059.     See  Redemption,  Equity  of., 

effect  on  right  to  redeem.  1059. 
separate  mortgages  on  separate  tracks,  1064. 
redemption  from  one.  1064. 
English  rule,  1064. 


2022  GENERAL    INDEX. 

References  are  to  Sections. 
REDEMPTION— co;zf/«K^c?. 
statutes  regulating,  1067. 

designating  shorter  period  for  than  allowed  in,  1068. 

effect  upon  right,  1068. 
filing  certificate  under,  1069. 
filing  deed  under,   1069. 
in  Arkansas,  1067. 
in  Nevada,  1067. 
stipulations  barring,  1038. 

subsequent  mortgagee  not  made  a  party,  may  redeem,  180. 
successor  of  assignee  in  bankruptcy  of  subsequent  incumbrancer,  not 

made  a  party,  may  redeem,  194. 
surrender  of  premises  under  statute,  1186. 
surrender  of  right  valid,  when,  1037. 
Sum  Payable  on. 

attorney  fees,  1207. 

by  assignee  of  mortgagor,  1195. 

by  junior  lienor,  1197. 

where  not  made  party,  1198. 
by  mortgagor,  1192. 

where  not  made  party,  1193. 
on  redeeming  from  subsequent  purchaser,  1194. 
by  tenant  in  common,  1199. 
by  third  party  interested,  1196. 
consolidation  of  liens,  tacking,  1201. 
costs  on,  1207. 

error  in  ascertaining  amount,  1202. 
from  subsequent  lienor  and  redemptioner,  1200. 
generally,  1191. 
improvements,  permanent,  1205. 

to  be  paid  for  when,  1205. 
Profits. 

applicable  on  sum  payable  when,  1206. 
Rents. 

applicable  on  sum  payable  when,  1206. 
sum  paid  to  protect  title,  1204. 
usurious  interest,  in  case  of,  1203. 
taxes,  payment  of  allowed  on,  when,  1185. 
tender  as  condition  precedent  to  right  to  redeem,  1220. 
tender  of  payment,  915. 

extinguishes  power  of  sale,  915. 
tender  on  necessity  for  depositing  money  into  court,  1177. 
tender  on  redemption.  1177. 
tender  to  wrong  party  in  possession,   1177. 


GENERAL    INDEX.  2023 

References  are  to  Sections. 

REDEMPTION— co?!//««e£/. 

terms,  conditions,  mode  and  effect  of,  1030  et  seq. 
amount  payable  to  effect,    1171. 
after   foreclosure,   1173. 

where  mortgage  to  secure  future  advances,  1174. 
where  part  only  of  debt  due,  1175. 
before  foreclosure,  1172. 
discretion  of  court,   1171. 
time  for  in  South  Dakota,  1141. 
time  for  not  expired ;  effect  upon  title  of  purchaser  at  foreclosure 

sale,    713. 
time  of.  1135,  1236. 

after  foreclosure.  1139. 

after  lapse  of  years,  1140. 
by  junior  lienholder,  1142. 
computation  of  time,   1141. 
fraud,  1144. 

effect  on  right  to  redeem,  1144. 
generally,  1139. 

receipt  of  rents  and  profits  by  mortgagee,  1143. 
effect  on  redemption,   1144. 
before  maturity,  1136. 

reason  for  the  rule,  1136. 
computation  of  time,  1141. 

rule  at  common  law,  1141. 
discretion  of  court,  1135. 

in  Illinois  six  months  usually  allowed,  1135. 
in  Iowa,  six  months,  1135. 

in  Nebraska,  reasonable  time  to  be  named  in  decree,  1135.* 
in  New  Hampshire,  one  year,  1135. 
in  England,  six  months,  1135. 
in  Washington,  six  months,  1135. 
extension  of  time  to  redeem,  1145,  1237, 
by  agreement  of  parties,  1145. 
Massachusetts  rule,  1145. 
by  court  of  equity,  when,  1147. 
by  court  under  statutory  foreclosure,  1146. 
chancellor's  power  to  grant  extension,  1237. 
discretion  of  court,  1237. 
in  Louisiana,  1145. 

what  amounts  to  an  extension,  1145. 
in  Arkansas,  1135. 
in  California,  1135. 
in  general,  1135. 

discretion  of  court  as  to,  1135. 
In  Illinois,  1135. 
in  Iowa,  1135. 


2024  GENERAL    INDEX. 

References  are  to  Sections. 
REDEMPTION— f:07ifn«<ed. 
Time  of — continued. 
in  Michigan,  1135. 
in  Minnesota,  1135. 
in  Missouri,  1135. 
in   South   Dakota,   1135. 

where  mortgagee  purchases  at  foreclosure,  1149 
widows  are  excepted  from  the  general  rule  in  some  states,  1135. 
time  within  which  to  redeem,  1135. 
two  or  more  mortgages  on  same  tract,  1063. 

redemption  from  one,  1063. 
unauthorized  redemption  by  judgment  creditor,  prevention,   1087. 
usurious  and  compound  interest,  1178. 
waiver  of  valid  when,  1036. 
war  as  ground  for,  1111. 
When  Allowed. 

in  case  of  action  in  another  court,  1163. 
in  case  of  appeal,  when,  1164. 
in  case  of  fraud,  when,  1165. 

in  case  of  owner  of  part  of  mortgaged  premises,  1166. 
in  case  of  parol  agreement,    1167. 
in  case  of  railroads,  1168. 
in  case  of  sale  of  mortgaged  premises,  1169. 
on  neglect  of  mortgagor  to  redeem  property  within  time  specified, 
1150. 
When  May  be  Made. 

allowed  when,  1150  et  seq. 

after  condition  broken,  1150. 
after  sale  to  mortgagee,  1158. 
by  grantee,  1153. 

breach  of  faith  as  ground  for,  1157. 
costs  on,  1161.    See  Costs. 

covenant  to  repay  omitted  does  not  affect  right,  1151. 
in  general,  1150. 
fraud   as   a   ground    for,    1155. 
in  general,  1150. 

interested  person   omitted   as   party   to   foreclosure,    1159. 
interests  and  rents  received  as  furnishing  grounds  for,  1154. 
misrepresentation  as  a  ground  for,  1155. 
mortgagee  taking  possession  on  default,  1160. 
on  payment  of  mortgage  debt,  1152. 
unforeseen  event  as  ground  for,  1156. 
when  not  allowed,  1162  et  seq. 
generally,  1162. 
when  mortgagor  will  be  let  in  to  redeem,  1070. 
who  entitled  to  redeem,  1137. 
who  may  redeem.,  1077  et  seq. 

administrator  mav  redeem.  1078. 


GENERAL    INDEX.  2025 

References  are  to  Sections. 
REDEMPTION— continued. 

Who  May  Redeem — continued 
annuitant  may  not,  1079. 
assignee  of  mortgage  may,  1080. 

mortgage  for  support,  1081. 
assignee  of  mortgagor  may,   1082. 
assignee  of  note  given  for  land  may,  when,  1083. 
attorney  may,  when,  1084. 
creditors  may  redeem  when,  1085  et  seq. 
from   another  creditor,    1088. 
general  creditors,  1086. 
having  lien  on  land,  1089. 
judgment  creditors,   1087. 
of  husband  on  mortgage  of  wife's  land.  1090. 
defendant  may  redeem,  1091. 
executor  may  redeem.  1078. 
grantor  of  land  mortgaged  to  secure  debt  of  another  may  redeem, 

1094. 
grantor  in  deed  absolute,  but   in   fact  a  mortgage,  may   redeem, 

1095. 
grantor  in  deed  of  trust,  1096. 
guardians  may  redeem,  1097. 
heirs  of  deceased  mortgagor  may  redeem,  1098. 
holder  of  legal  estate  may  redeem,  1099. 

holder  of   interest  in  mortgaged  premises  may  redeem,   1100. 
holder  of  easement  in  mortgaged  premises  may  redeem,  1101. 
holder  of  part  of  mortgaged  premises  may  redeem,  1102. 
holder  of  bond  to  convey  cannot  redeem,  1103. 
in  Alabama,  only  persons  upon  whom  right  conferred  by  the  code, 

1105. 
introductory,  1077. 
joint  mortgagor  may  redeem,  1109. 
Judgment  Creditor. 

after   sale   and   before   conveyance,   lien  may   attach,    1115. 

amount  must  pay.   1087. 

any  judgment  creditor,  1087. 

can  not  when  lien  extinguished  by  execution  sale,  1087. 

can  not  when  relation  of  debtor  and  creditor  did  not  exist, 

1087. 
can  not  when  judgment  ceased  to  be  a  lien,  1087. 
'  can  not  redeem  after  debt  has  been  satisfied,   II05. 

in  Missouri,  1105. 
in  Nebraska,  1105. 
in  New  Jersey,  1105. 
in  New  York,   1105. 
in  Oregon,  1105. 
in  Texas,  1105. 


2026  GENERAL    INDEX. 

References  are  to  Sections, 

REDEMPTION— conf/«Me(f. 

Who  May  Redeem — continued 

Judgment  Creditor — continued. 

can  not  redeem  after  debt  has  been  satisfied — continued. 
in  Vermont,  1105. 
in  Wisconsin,  1105. 
in  England,    1105. 

having  judgment  against  heir,  1087. 

in   Alabama,    1087. 

in  case  of  homestead,  maj'  not  redeem,   1087,  1089. 

in  case  of  partnership,  1087. 

in  Indiana,  1087. 

in  Iowa,  1087. 

in  Minnesota,  1087. 

in  United  States  courts,  1087. 

of  mortgagor  who  has  given  deed  absolute   in  form,  taking 
back  a  defeasance,  1087. 
Junior  Mortgagee. 

in  California,  1105. 

in  Connecticut,  1105. 

in  Illinois,  1105. 

in  Iowa,  1105. 

in  Kentucky,  1105. 

in  Michigan,   1105. 

in  Minnesota,  1105. 
legatee  may  redeem,  1092. 
married  woman  mortgaging  own  property  for  husband's  debt,  may 

redeem,  1104. 
Mortgagee. 

and  wife   may  redeem,   when,    1108. 

junior  may  redeem,  1105. 

senior  cannot  redeem,  1106. 
mortgagor;  conveying  land  to  third  party  can  not,  1107. 

selling  land  to  mortgagee  can  not,  1107. 
mortgagor  may  redeem,  1107. 
joint  mortgagor  may  redeem,   1109. 
owners  only  persons  who  can  redeem  real  estate  bank  lands  in 

Arkansas,  1077. 
partner  may  redeem,  1110. 

persons  entitled  may  pursue  right  in  order  of  priority,  1077. 
persons  in  interest  not  made  parties  may  redeem,  1056. 
person  in  possession  after  conveyance  can  not,   1077. 
Purchaser. 

after  foreclosure  may  redeem,  1115. 

at  execution  sale,   1116. 

at  foreclosure  sale,  1117. 

before  ^foreclosure,  1113. 


GENERAL    INDEX.  2027 

References  are  to  Sections. 

REDEMPTION— con^/nH^rf. 

Who  May  Redeem — continued 

Purchaser — continued. 

from  grantee  of  owner  of  equity  of  redemption,  1119. 
from  sole  heir,  1118. 
pending  foreclosure,  1114. 

remainderman  may  redeem,  1120. 

reversioner  may  redeem,  1120. 

stranger  to  transaction  cannot  redeem,  1121. 

sub-agent  may  redeem,  when,  1122. 

subsequent  lienor  may  redeem,  1123. 

sureties  may  redeem,  1124. 

tenant  by  curtesy  may  redeem,  1125. 

tenant  by  dower  may  redeem,  1126. 

tenant  for  life  may  redeem,  1127. 

tenant  for  years,  1128. 

tenant  in  common  may  redeem,  1129. 

tenant  in  tail  may  redeem,   1130. 

title  insurance  company  cannot  redeem,  1131. 

trustee  of  absent  debtor  may  redeem,  when,  1132. 

where  mortgagor  has  conveyed  his  equity  of  redemption,  1087. 

where  premises  in  hands  of  personal  representatives,  1087. 

where  sale  irregular,  1087. 

wife  joining  in  mortgage  may  redeem,  1133. 

widow  may  redeem,  1134. 
REDEMPTIOX,  EQUITY  OF. 

answer  by  claimants  of  interests  in,  385. 
definition,  1025. 

devisees  of ;  necessary  defendants,  162. 
heirs  of  owner  of ;  necessary  defendants,   161. 
mesne  owners  of,  not  necessary  parties,  149. 

personal  representatives  of  owner  of ;  necessary  defendants  in  fore- 
closure by  advertisement  in  New  York,   165. 

usually  not  necessary  defendants,  165. 
but  always  proper,  165. 
purchaser  of ;  right  to  set  up  usury  as  defense  in  foreclosure,  411. 
right  of  claimants  of  interest  in,  to  answer,  385. 
sale  of  equity  of  redemption,  1059. 

effect  on  right  to  redeem,  1059. 
sale  of  to  mortgagee,  1047. 

setting  aside  sale,  1048. 

rule  governing  courts,  1049. 
when  extinguished,  1055. 

where  devised,  heirs  not  necessary  defendants,  162. 
widow  of  owner  of,  a  necessary  defendant,  155. 


2028  GENERAL    INDEX. 

References  are  to  Sections. 

REDEMPTION,   EQUITY   0¥— continued. 

wife  of  owner  of,  a  necessary  defendant,  155. 

having  made  grant  of  dower,  still  a  necessary  defendant,  155. 
not  a  necessary  defendant,  where  dower  rights  abolished  by  stat- 
ute, 155. 
REFEREE. 

deed  of  and  effect  of;  682.     See   Deed  of   Officer  Making   Sale; 

Report. 
oath  of ;  waiver,  898. 
report  of,  523. 

confirming,  523. 
exceptions  to,  523. 
filing  and  confirming,  523. 
new  hearing,  523. 
REFERENCE. 

costs;  general  discussion  of  the  matters  pertaining  to.    See  Costs. 

for  appointment  of  receiver,  775  et  seq. 

in  case  of  infant  defendants;  requisites  of  order,  502. 

judgment  upon  report;  form  and  contents,  524-526. 

of  issues ;  on  failure  of  defendant  to  appear  on  trial.  529. 

referee  residing  in  different  jurisdiction;  place  of  trial,  29. 

to  ascertain  surplus,  832. 

to  assert  or  prove  lien  junior  to  mortgage;  participation  in  surplus, 

843. 
to  compute  amount  due,  502  et  seq. 

after  default,  or  admission  by  answer,  502. 
allowance  of  taxes  and  assessments,  516. 
application  for,  530. 
building  and  loan  association  mortgage,  515. 

fines  and  dues,  515. 
change  of  referee,  510. 

competency  of  witnesses  and  evidence,  509,  513. 
computation;   on  failure  to  pay  taxes  and  assessments,  517. 
statement  of  -items,  514. 

allowance  for  interest,  repairs  and  payment  of  prior  liens, 
514. 
contents  of  order;  directions  as  to  computation,  50S. 

direction  to  ascertain  if  premises  can  be  sold  in  parcels,  508. 
in  case  of  non-answering  defendants,  510. 
of  infant  or  absentee  defendants,  509. 
county  in  which  may  be  held;  venue,  521. 
determination  as  to  how  much  of  premises  shall  be  sold ;  parcels, 

571. 
discretion  and  authority  of  referee  as  to  conduct  of  reference,  521. 
•    entry  and  service  of  order  prerequisite  to  action  by  referee,  512. 
extent  and  scope  of  examination,  513. 
failure  to  appear  at  trial  after  answering,  507. 


GENERAL    INDEX.  2029 

References  are  to  Sections. 

REFERENCE— co;!f!»»^c?. 

to  compute  amount   due — continued. 

finding  as  to  how  premises  should  be  sold,  520,  522. 
general  powers  and  duties  of  referee,  519. 
infant  and  absentee  defendants,  531. 
contents  of  order,  509. 

examination  of  plaintiff  must  be  exhaustive,  513. 
insurance ;  allowance  of  premiums  paid  by  mortgagee,  518. 
judgment  upon  report,  524  et  seq. 
mortgage  upon  leasehold  interest,  517. 

allowance  of  rent  charges  paid  by  mortgagee,  517. 
motion  papers,  505. 
nature  of  proceedings,  511. 
oath  of  referee,  511. 
on  second  installment ;  after  sale  of  part  of  premises  to  satisfy 

prior  installment,  581,  582. 
order  not  appealable,  508. 
order;  appeal  from  final  judgment  brings  up,  508. 

should  define  duties  of  referee  and  limit  scope  of  reference, 

510. 
should  require  referee  to  report  proofs  and  evidence  taken, 
510. 
power  of  referee  to  determine  questions  as  to  priority,  521. 
power  to  order,  529. 

referee  governed  by  chancery  rules  and  practice,  519. 
no   discretion ;   authority  limited  by  order,   513. 
to  be  selected  by  court,  507. 
report;  contents,  519. 

exceptions  and  new  hearing,  523. 
filing  and  confirmation,  523. 
necessity ;  sufficiency ;  contents,  522. 
that  premises  can  be  sold  in  parcels,  508. 
time  and  place  of  making  motion ;  court  calendar,  504. 
when  made  ex  parte  and  without  notice,  503. 
when  part  of  defendants  have  not  answered,  530. 
who  may  be  referee,  507. 
who  may  prosecute,  512. 
withdrawal  from  referee.  510. 

special  order  of  court  necessary,  510. 
witnesses;  testimony  need  not  be  signed,  513. 
to  determine  priority  of  claims  in  surplus  moneys,  892. 
to  investigate  title ;  on  refusal  of  purchaser  to  accept,  675. 
to  sell  premises.    See  Sale. 
whole  amount  not  due ;  sale  of  parcels,  502. 
REFORMATION  OF  INSTRUMENT. 

mistake;  as  defense  against  assignee  of  note  and  mortgage,  412. 
correction  of,  431. 


2030  GENERAL    INDEX. 

References  are  to  Sections. 

REHEARING. 

mistake;  in  describing  premises;  correction,  432. 
of  reference,  523. 
RELEASE. 

by  attorney ;  of  old  mortgage  without  receiving  new,  478. 

by  payee  after  transfer  of  note  secured,  478. 

can  not  be  given  by  mortgagee  joining  in  a  deed  with  mortgagor,  140. 

extinguishes  mortgage,  when,  468. 

fraudulent;  is  void,  478. 

manner  of  pleading;  description  of,  478. 

mortgage  kept  alive  to  subserve  purposes  of  justice,  478. 

of  parcels ;  sale  in  order  of  alienation,  602. 

of  part  of  premises,  478. 

agreement  by  mortgagee  to  release;  estoppel,  456. 

enforcement,  480. 
application  of  proceeds,  480. 

as  defense  to  action  to  foreclose,  478.     See  Answers  and  De- 
fenses. 
effect  on  mortgage  lien,  478. 
exemption  of  other  portion  from  payment  of  mortgage;  notice 

of,  479. 
purchaser  at  foreclosure  sale  acquires  no  title  as  to  such  portion, 

710. 
what  constitutes,  478. 

effect  of  knowledge  of  prior  conveyance  of  other  part,  479. 
of  prior,  by  holder  of  subsequent  mortgage,  478. 

priority  of  intervening  mortgages,  478. 
substitution  of  new  mortgage  for  old;  priority  over  intermediate  in- 
cumbrances, 478. 
without  authority;  is  void,  478. 
REMAINDERMEN  AND  REVERSIONERS, 
necessary  defendants,  170. 

owner  of  first  vested  estate,  and  owner  of  intermediate  estates,  suf- 
ficient, 170. 
defendant  in  esse,  necessary,  171. 
REMEDIES. 

in  favor  of  mortgagor  for  fraud,  423. 
of  mortgagee  after  default,  11. 
Georgia  rule,  11. 
Illinois  rule,  11. 
Ohio  rule,  11. 
of  mortgagee  against  grantee  assuming  mortgage,  242. 
of  owner  of  mortgaged  premises,  omitted  as  a  defendant,  148. 
of  subsequent  judgment  creditors,  omitted  as  defendants,  184. 
of  subsequent  mortgagees,  omitted  as  defendants,  180. 
of  wife,  not  signing  mortgage,  omitted  as  a  defendant.  156. 
provided  by  terms  of  bond  and  mortgage  not  exclusive,  11. 
to  recover  debt  secured  by  mortgage,  310. 


GENERAL    INDEX.  2031 

References  arc  to  Sections. 

REMOVAL  OF  ACTION.    See  Trial;  Venue. 

foreclosure ;  consolidation.  334. 
RENTS   AND  DAMAGES. 

mortgagee  liable  for,  when,  1214. 
RENTS  AND  PROFITS. 

accounting  for,  720.    See  Accounting  for  Rents  and  Profits. 

accounting  for  on  redemption,  1183. 

and  damages,  1214. 

applicable  on  sum  payable  on  redemption,  when,  1206. 

application  in  pa)'ment  of  mortgage,  468. 

amendment  of  answer  to  secure,  468. 
assignee  of  mortgage  as  further  security  cannot  be  charged  with,  1214. 
belong  to  purchaser  on  foreclosure,  when,  718. 
claim  for  as  counter  claim,  446. 
interest  on,  1214. 

mortgagee  in  possession ;  appointment  of  receiver,  812-814. 
Mortgagor. 

entitled  to  account  of,  on  redemption,  when,  1189. 

entitled  to  redeem  without  paying,  when,  1206. 

rights  to  receive,  758,  791. 
pass  by  sale  in  foreclosure,  702,  718. 

Delaware  doctrine,  718. 

Mississippi  rule,  718. 

South  Dakota  rule,  718. 

Tennessee  rule,  718. 

Texas  rule,  718. 

Vermont  rule,  718. 
receipt  of  by  receiver  of  railroad  from  lessee  of  some,  eflfect,  702. 
receiver;  appointment  of.    See  Receiver,  758  et  seq. 
recovery  for  in  action  separate  from  that  to  redeem,  1214. 
right  as  to  between  mortgagor  and  mortgagee,  795. 
right  of  owner  of  equity  of  redemption  to,  719. 
right  of  purchaser  to,  719. 
REPAIRS. 

allowance  for  on  redemption,  when,  1182. 
REPLEVIN. 

for  emblements,  717. 

not  lie  in  favor  of  purchaser  before  confirmation  of  sale,  717. 
REPLY. 

by  mortgagor  or  his  grantee,  382. 
counterclaim ;   invalidity  of  mortgage,  447. 
REPORT. 

confirmation  of  referee's  report,  614. 
of  officer  making  sale,  612. 
of  referee.    See  Reference. 
of  sale.    See  Sale. 


2032  GENERAL    INDEX. 

References  are  to  Sections. 

RESALE. 

application  may  be  made  at  any  time  before  confirmation,  614. 

costs  on,  1000. 

for  abuse  of  discretion  by  officer,  606. 

general  discussion  of  matters  relating  to.      See  Sale,  618  et  seq. 

right  to  because  order  of  sale  failed  to  show  payment,  624. 

right  to  because  sale  was  made  without  appraisement,  624. 

time  of  making  application  for,  623.      See  Sale,  Setting  Aside. 
RESCISSION. 

of  contract  to  purchase  subject  to  mortgage;  notice,  339. 
RESTRAINING  SALE. 

under  degree,  565. 
RESULTANT  AND  SECRET  TRUSTS. 

barred  by  foreclosure  sale,  when,  694. 
RETURN. 

made  more  than  60  days  after  its  issuance  will  not  invalidate  sale,  612. 
REVENUE  LAWS. 

mortgage  given  to  avoid,  binding,  406. 
REVERSIONERS.    See  Remaindermen  and  Reversioners. 

necessary  parties  defendant  to  foreclosure,  170. 
REVIEW. 

bill  of ;  correction  of  mistake  in  describing  premises,  432. 
RIGHT  OF  FORECLOSURE.  See  Foreclosure. 

accrues,  when,  38. 
RIPARIAN  MORTGAGES. 

right  to  strip  of  land  reclaimed,  291. 

title  of  purchaser  at  foreclosure  to  land  reclaimed,  703. 
RULES. 

Bacon's  ordinances,  364.     See  Lis  Pendens. 

rule  nisi,  before  debt  is  due,  in  Georgia,  39. 
SALE. 

adjournment;  discretion,  606. 

false  promise  to  obtain ;  setting  aside  sale,  646. 
publication  of  notice,  607. 

published  notice  of  need  not  describe  lands,  607. 
under  statutory  foreclosure,  607. 

advantage  to  debtor,  963. 
early  discussions,  963. 

after  satisfaction  of  debt;  effect  of,  944. 

all  proceedings  are  subject  to  direction  and  control  of  court,  533. 

appeal;  effect  on  title  of  purchaser,  721. 

assignee  of  purchaser's  bid,  rights  of,  678. 

at  door  of  court  house.  555. 

authority  of  officer  appointed  to  sell  cannot  be  delegated,  537. 

Bids  at. 

acceptance  confers  no  title,  656. 
assignment  of  bid;  rights  of  assignee,  678. 


GENERAL    INDEX.  2033 

References  arc  to  Sections. 
SALE — continued. 

Bids  at — continued. 

excused  from  completing,  when,  664.  See  Sale;  Enforcing. 
failure  to  deposit;  resale,  559. 
payment;  deposit,  559. 

scarcity  of  bidders  not  a  cause  for  setting  aside  sale,  639. 
burden  of  proof  on  party  moving  to  set  aside,  645. 
by  mortgagee,  after  he  has  parted  with  interest ;  validity,  916. 
by  mortgagor  or  mortgagee.    See  Assignment;  Assumption;  Vendor 

AND  Purchaser. 
by  only  one  United  States  loan  commissioner  is  void,  109. 
by  what  officer  made;  employment  of  auctioneer  or  deputy,  537. 

United  States  loan  commissioners;  only  one  acting,  109. 
by  whom  made,  533. 
caveat  emptor  applies  in  Nebraska,  631. 
certificate  of,  563. 

as  lien  on  premises,  563. 

conveys   no  title  or  right   of   possession  to  purchaser,  563. 
filing  under  statute  regulating  foreclosure,  1069, 
form  of,  563. 
clerk  of  court  may  make,  537. 
community  property,  title  conveyed,  687. 
conduct  of,  606  et  seq. 
adjournment,  606. 

notice  of,  publication,  607. 
postponement.  606. 

publication  of  notice  on,  607. 
who  may  purchase  at,  609. 

administrator  of  mortgagee,  609. 
assignee  of  mortgagor,  609. 
attorney  of  plaintiff,  609. 
beneficiaries,  609. 
creditor  of  mortgagor,  609. 
deed  made  to  other  than  real  purchaser,  609. 
executor  of  mortgagee,  609. 
married  woman,  609. 
mortgagee  may  purchase  when,  610. 
mortgagor  may  purchase,  609. 

person  appraising  land  may  purchase  at  sale  under  same.  609. 
person  whose  property  liable  for  the  debt  may  purchase,  609. 
trustee  may  purchase,  609. 
vendor  may  purchase,  609. 
confirmation,  614,  656  et  seq. 

and  enforcing  purchase,  656  et  seq. 
appeal  from;  for  formal  irregularities,  694. 
at  special  term  of  court,  662. 
bidder  need  not  accept  deed  until,  656. 
Mortg.  Vol.  II.— 128. 


2034  GENERAL    INDEX. 

References  are  to  Sections. 
SALE — con  finued. 

Confirmation — continued. 
by  acts  in  pais,  683. 

continued  possession  under  deed  equivalent  to,  656,  662. 
court  to  be  satisfied,  656. 
cure  for  irregularities,  662. 
defects  cured  by,  627. 
discretion  of  court,  663. 

to  permit  tender  by  mortgagor,  663. 

to  release  purchaser,  663. 
effect  of,  662. 
errors  cured  by,  671. 
form  and  sufficiency;  order  nisi,  660. 

Illinois  and  New  York  rule;  not  prerequisite  to  deed,  656,  659. 
jurisdictional  defects  not  cured  by,  671. 
lapse  of  time  equivalent  to,  662. 
necessity  of ;  sale  incomplete  until,  656. 
not  bar  to  setting  aside  sale  for  accident  or  mistake,  662. 
not  cure  jurisdictional  defect,  662. 
notice  of  application  for,  660-662. 
notice  of,  614. 
not  prerequisite  to  deed,  680  et  seq. 

nor  to  execution  for  deficiency,  616. 
not  unless  due  notice  of  sale  given,  663. 

nor  unless   requirements  of   decree  complied   with.   660,  663. 
objections  to;  correction  of  referee's  report,  661. 
of  report  of  sale,  614. 
on  re-appraisement,  when,  656. 
order  can  not  be  collaterally  attacked,  660. 

may  be  appealed   from,  660. 
prerequisite  to  enforcement  of  sale  against     purchaser,  664. 

to  judgment  for  deficiency,  754- 

to  possession  by  purchaser,  722. 
question  of  usury  not  raised  on,  614. 
ratification  by  mortgagor,  658. 

by  acquiesence  in,  when,  658. 

by  payments  subsequently  made  on  balance  of  judgment,  658. 
relates  back  to  date  of  sale  and  renders  deed  valid,  680. 

growing  crops,  662. 
renders  referee's  report  the  act  of  the  court,  662. 
right  of  redemption  by  the  owner  of  the  equity  of  redemption,  cat 

off,  682. 
setting  aside  sale ;  discretion  of  court,  663. 
should  precede  delivery  of  deed,  680. 

but  not  where  time  allowed  for  redemption,  680. 
when  not  prerequisite  to   execution   for   deficiency,   738. 
when  to  be  made.  657. 


GENERAL    INDEX.  2035 

References  are  to  Sections. 

SALE — continued. 

costs,    fees,    etc.;    general    discussion    of    matters   pertaining   to.    See 

Costs. 
crops ;  growing ;  pass  to  purchaser,  717. 
death  of  plaintiff;  not  effect  of  powers  of  officer,  537. 
decree  of ;  generally.  533.    See  Decree  and  Order. 
deed;  accrument  of  right  to,  713. 

after  delivery  purchaser  can  not  repudiate  contract,  713. 

although  the  sale  may  afterwards  be  set  aside  for  irregularity 
680. 
bars  parties  to  action,  and  their  grantees,  etc.,  682. 
before  confirmation,  680. 

confirmation  relates  back  to  date  of  sale,  680. 
cuts  off  rights  and  interests  in  equity  of  redemption,  682. 

but  not  interests  paramount  to  title  of  mortgagor  and  mort- 
gagee, 682. 
delivery  prerequisite  to  title,  possession,  rents  and  profits  in  pur- 
chaser, 681. 
effect  and  force  of,  14,  682. 

what  title  passes,  14,  682. 
effect  of  appeal  and  reversal  on  title  acquired  by,  721. 
effect  on  title  of  void  and  erroneous  decrees  and  proceedings,  721. 
English  doctrine;  withholding  until  confirmation,  680. 
estate  and  interests  passed  and  conveyed,  683. 
execution  and   delivery,  708. 
by  officer  making  sale,  680. 
delivery,  680.     See  Deed. 

not  ordered  until  purchase  money  paid  into  court,  708. 
extinguishment  of  easement  reserved  by  mortgagor,  712. 
form   and   contents ;   generally,   709. 

description  of  premises;  correction  of  error,  710. 
embracing  portion  of  premises  released,  710. 
variance  in  mortgage,  decree,  and  deed,  711. 
granting  clause;  state  whose  title,  etc.,  affected,  709. 

without  naming  other  parties  to  action,  709. 
must  name  other  parties  who  executed  mortgage,  709. 
holder  is  prima  facie  legal  owner  of  land  described  therein,  680. 
may  be  delivered   immediately  after  sale,  upon  compliance  with 

terms,  680. 
may  be  executed  and  delivered  before  confirmation,  708. 
mortgage  of  lease  for  years;  purchaser  becomes  assignee,  683. 
not  affect  prior  liens  and  incumbrances,  682. 

where  holders  not  made  parties,  683. 
not  pass  greater  interest  than  authorized  by  judgment.  683. 

although  deed  included  premises  mentioned  in  mortgage,  bul 
subsequently  released,  683. 


2036  GENERAL    INDEX. 

References  are  to  Sections, 
SALE — continued. 
Deed — contin  tied. 

not  pass  title ;  to  lands  not  described  in  mortgage,  710. 

until  delivery,  680. 
not  readj'  at  time  fixed ;  remedy  of  purchaser,  708. 
officer  required  to  execute;  when,  708. 
on  sale  by  only  one  United  States  loan  commissioner,  conveys  no 

title,  109. 
passes  title;  by  delivery,  although  sale  not  confirmed,  680. 
New  York  and  Illinois  rule,  656. 

confirmation   not   required,   659. 
of  both  mortgagor  and  mortgagee,  683. 
to  emblements,  717. 

to  entire  estate  of  mortgagor  at  date  of  mortgage,  681. 
.  to  fixtures,  714. 

exceptions  to  rule,  715. 
to  permanent  improvements,  716. 
possession ;  compelling  delivery  of,  722. 
remedies  and  proceedings,  722  et  seq. 

under  New  York  code;  order,  724. 
rents  and  profits ;  rights  of  purchaser  to,  681. 
summary  process  by  purchaser  to  obtain,  723. 

under  New  York  code,  732. 
writ  of  assistance,  725  et  seq. 

dispossession  of  holder  of  paramount  title,  731. 
granting  of,  discretionary,  731. 
how  obtained,  725,  726. 
remedy  when  improperly  granted,  729. 
to  dispossess  tenant,  730. 
when   fully  executed,  729. 
who   entitled  to,  728. 
who  may  be  dispossessed,  727. 
prerequisite  to  possession,  713. 

prerequisite  to  vesting  of  title  and  right  to  possession,  713,  718. 
purchaser ;  becomes  mortgagor  as  to  vendee  in  possession,  683. 
takes  same  estate  as  would  have  vested  in  mortgagee,  682. 
purchaser's  title ;  relates  back  to  date  of  mortgage,  712. 

as  affected  b}'  time  for  redemption,  713. 
relates  back  to  date  of  sale,  713. 

remedy  and  process  to  put  purchaser  into  possession,  681. 
report  and  confirmation  not  prerequisite,  680. 
should  precede  delivery,  680. 

but  not  where  time  allowed  for  redemption,  680. 
right  of  purchaser  to  rents  and  profits,  718. 

to  possession  not  affected  by  conveyance  from  plaintiff  to  a 
defendant  of  the  entire  premises,  681. 
takes  effect  immediately  on  delivery,  708. 


GENERAL    INDEX.  2037 

References  are  to  Sections. 
SALE — continued. 
Deed — continued. 

title  of  parties  divested  by,  from  time  of  sale,  618. 
to  other  than  real  purchaser,  609. 
when  tax  title,  previously  acquired,  not  cut  off,  682. 
defective ;  effect  of  confirmation,  553. 
defects;  effect  on  title,  692. 
defects  of,  title  unknown  to  purchaser  at  time  of,  effect,  688.     See 

Enforcing  Purchase,  this  title, 
deficiency;  execution  for,  615. 

confirmation  of  report  not  prerequisite,  615. 
judgment  for,  615. 
report  should  state  amount,  615. 
See  Deficiency,  72)Z  et  seq. 
delivering  possession  to  purchaser,  722. 
deputy  sheriff'  may  make,  537. 
doctrine  of  caveat  emptor  as  applied  to,  686. 
duties  of  officer  making,  539. 
duties  of  person  making  under  power,  316. 
easement;  extinguishment  of,  712. 
effect  of  adjournment,  554. 

effect   of   mortgagor's   insanity  at  time  of   sale,   325. 
effect  of,  where  owner  of  equity  of  redemption  not  a  party,  147. 
effect  on  right  to  redeem,  1169. 
emblements ;  pass  to  purchaser,  717. 
Enforcing  Sale. 

against  purchaser,  664. 

excused  from  completing  purchase  when,  664-667. 

defects  of  title  existing  prior  to  mortgage  do  not,  669. 
defects  of  title  unknown  to  purchaser  at  time  of  sale,  668. 
first  mortgage  foreclosed  at  the  time,  667. 
partial  destruction  of  premises  by  fire,  664. 
restriction  on  free  use,  667. 
title  unmarketable,  676. 
marketable   title   requisite,   676. 

caveat  emptor  applies  in  Nebraska,  676. 
mortgagee  not  required  to  pay  full  amount  where  buildings 

destroyed  by  fire,  664. 
proceeding  against  purchaser,  665. 
specific  performance  compelled,  665. 
known  condition  of  title,  670. 
error  in,  effect  on  title,  688. 
estoppel  of  mortgagee  by  silence  at.  458. 
execution ;  upon  judgment  for  mortgage  debt,  683. 
upon  decree;  levy  not  necessary,  539. 
what  title  passes ;  equities  cut  off,  683. 
failure  to  complete  purchase,  procedure  on,  559. 


2038  GENERAL    INDEX. 

References  are  to  Sections. 
SALE — con  tinned. 

fixtures ;  pass  to  purchaser,  714. 

exceptions  to  rule,  715. 
for  breach  of  condition  extinguishes  power  reserved  to  mortgagor, 

912. 
for  cash ;  what  constitutes,  941. 
form  and  contents  of  decree,  534. 
fraud  in,  effect  on  title,  688. 
growing  crops;  pass  to  purchaser,  717. 
holding  open,  608. 

how  long  should  be  held  open,  554. 
improvements;  permanent;  pass  to  purchaser,  716. 
in  inverse  order  of  alienation,  584. 

contribution  according  to  value,  600. 
valuation,  when  made,  600. 

in  case  of  lessee  not  a  party,  588. 

in  case  of  subsequent  mortgage,  587. 

order  of  sale  where  mortgage  covers  homestead  and  other  lands, 
603. 

parcel  of  mortgaged  land  conveyed,  sold,  when,  584. 

successive  conveyances,  584. 

where  mortgaged  land  has  been  platted,  585. 

where  mortgage  taken  with  notice  of  equities,  586. 

where  part  covered  by  junior  mortgage,  584,  587. 
In  Parcels. 

determining  how  much  of  premises  to  be  sold,  571. 

direction  in  judgment,  527,  567. 

discretion  of  officer  as  to,  542,  576. 

entire  property  to  be  sold,  when,  571. 

in  sale  under  power,  940. 

inchoate  right  of  dower  entitled  to  when,  573. 

only  part  of  mortgage  due,  579. 

order  of  reference  to  ascertain  if  premises  can  be  sold  in,  508. 

order  of  sale,  dictated  by  mortgagor  or  mortgagee,  575. 

portion  of  premises  for  part  of  debt  due,  580. 
failure  to  pay  subsequent  installments,  580. 

protection  of  subsequent  liens  and  equities,  572. 

redemption  on.     See  Redemption. 

report  of  referee  that  premises  can  be  sold  in,  508. 

sale  set  aside  when  not  so  made,  when,  573. 

statutory  prohibitions,   571. 

subdivision   into  lots  after   execution  of  mortgage,  577. 

subsequent  liens  and  equities  to  be  protected  by,  572. 

under  New  York  code,  570. 

waiver,  940. 

when  premises  described  in  one  piece,  574. 


GENERAL    INDEX.  2039 

Reference:)  are  to  Sections. 
SALE — continued. 

In  Parcels — continued. 

when  sale  in  parcels  a  matter  of  right,  573. 
California  code,  573. 
Illinois  statute,  573. 
Michigan  statute,  573. 
Minnesota  statute,  573. 
Washington  code,  573. 
West  Virginia  code,  573. 
when  different  tracts  included,  568,  573. 
where  property  described  in  one  piece,  574. 
where  property  lies  partly  in  another  state,  569. 
incorrect  publication  as  invalidating,  547. 
Invalid. 

conveys  no  title,  701. 

recovery  of  mortgaged  premises  from  purchaser  by  heirs,  701. 
irregular,  eft'ect  on  title  taken,  692,  701. 
judgment  of ;  contents ;  variation  from  referee's  report,  526. 

extent  of  relief  granted,  527. 
judicial;  of  mortgaged  premises;  in  parcels,  595. 

order  of  alienation  on  subsequent  foreclosure,  595, 
junior  lienors  barred  by,  when,  693. 
lease  for  years ;  purchaser  becomes  assignee,  683. 
letting  purchaser  into  possession,  681. 

made  in  countv  where  property  is  not  situated;  effect  of  confirmation, 
554. 
validity  of,  554. 
memorandum  by  purchaser,  611. 
moiety;  land  held  by  tenants  in  common,  578. 
mortgage  to  secure  goods  to  be  furnished  in  future,  405. 

validity ;  consideration,  405. 
mortgagee  purchasing  at,  610. 
must  be  at  public  auction,  604. 

by  officer  appointed  or  designated  by  statute,  604. 
to  highest  bidder,  604. 
necessity  for  officer  to  take  oath  before  making,  537. 
non-compliance  was  bid ;  second  offer,  539. 
not  decreed  on  redemption,  1240. 

not  invalidated  by  failure  to  determine  all  issues  involved  in  fore- 
closure action,  692. 
not  invalidated  by  return  60  days  after  issuance,  612. 
not  within  statute  of   frauds,  611. 
Notice  of,  543. 

adjournment,  607. 
Arkansas  rule,  543. 
contents  of,  545. 
description  of  premises,  545. 


2040  GENERAL    INDEX. 

References  are  to  Sections, 
SALE — CO  n  tin  ued. 

Notice  of — continued. 

describing  amount  due,  545. 
describing  improvements,  546. 
defective,  effect  of,  544,  630. 
form  and  contents  of,  545. 
in  case  of  trust  deed,  543. 
indefiniteness  as  to  time  and  place,  647. 

setting  aside  sale  for,  647. 
irregularities,  etc.,  in  giving,  618. 

setting  aside  sale  for,  618. 
Missouri  rule,  543. 
necessity  and  sufficiency,  543. 
New  York  statute,  543. 
on  sale  under  power,  928. 
Posting. 

by  agent,  543. 
statutory,  550. 
publication  of,  547. 
Illinois  rule,  547. 
in  mortgage  with  power,  917. 
insufficient  time,  547. 
Texas  rule,  547. 
Maryland  rule  as  to  paper,  917. 
of  adjourned  sale,  548. 
of  terms  and  conditions,  560. 
omission  in  printer's  affidavit,  552. 
place  of  publication,  549. 

sufficiency  of  newspaper,  549. 
proof  of,  552. 
time  of,  547,  548. 

to  be  made  by  sheriff  in  some  states,  547. 
sale  on  Sunday  or  a  holiday,  607. 
service  of,  551. 

assignee  in  bankruptcy  not  entitled  to  in  New  York,  923. 
upon  whom  to  be  made,  551. 
where  made  under  a  power  in  the  mortgage,  315. 
obligations  of  purchasers,  697. 

of  entire  property  where  only  part  of  mortgage  due,  50. 
of  mortgaged  succession,  696. 
of  portion  of  premises  for  part  of  debt,  580. 

subsequent  default;  petition  for  second  sale,  581. 
reference  on,  581. 
of  undivided  two-thirds  to  protect  wife's  inchoate  right  of  dower,  578. 
of  railroad  free  from  all  liens,  533. 
Officer  Making. 

acts  those  of  court,  606. 


GENERAL    INDEX.  2041 

References  are  to  Sections. 

SALE — continued. 

Officer  JV/aking — continued. 
authority  of,  538. 
discretionary  powers,  542,  60S. 
duties  of,  539. 

appraisement,  540. 

appraisers,  duties  and  powers  of,  540. 
Arkansas  rule,  540. 
Kansas  rule,  540. 
Louisiana  rule,  540. 
new  appraisement,  540. 
•  Ohio  doctrine,  540. 

objections  to,  541. 
as  to  receiving  bids,  604. 
ministerial,  539. 
payment ;  kind  of  money,  539. 
personal  attendance,  604. 
to  announce  terms,  539. 
to  attend  at  time  and  place,  539. 
to  ofifer  to  highest  bidder,  receive  bids,  etc.,  539. 
to  personally  direct  sale,  604. 
to  postpone  sale,  and  not  sacrifice  property,  539. 
to  report  deficiency,  734. 
to  report  largest  bid  to  court,  667. 
to  require  memorandum,  539. 
to  sell  without  delay,  539. 
to  wait  a  reasonable  time  for  bids,  604. 
not  agent  for  plaintiff,  606. 
powers  and  discretion;  loan  commissioners;   concurrence  of  all, 

605. 
powers ;  discretion ;  can  not  be  delegated,  605. 
report  of,  612,  661. 

error  in,  effect  of,  661. 
on  foreclosure  of  contemporaneous  mortgages,  where  all  mortgagees 

were  not  made  parties,  is  defective,  116. 
order  of  alienation;  appellate  court  can  not  first  decree,  592. 
application  to  court  for  direction  as  to,  593. 
inverse;  application  may  be  made  to  officer,  593. 

instances  where  rule  not  applicable,  599. 
parcels;  assumption  of  mortgage  by  subsequent  grantee  of  part, 
598. 
contribution  according  to  value;  valuation,  600. 
,  equitable  rights  between  subsequent  grantees  and  lienors,  594. 

date  of  conveyance,  595. 
purchaser  of  part  of  premises  subject  to  mortgage,  597. 
rights  of  successive  subsequent  mortgagees,  596. 
New  Jersey  rule,  596. 


2042  GENERAL    INDEX. 

References  are  to  Sections, 

S  ALE — CO  n  tin  tied. 

Order  of  Alienation — continued. 
parcels — continued. 

rule  where  mortgage  covers  homestead  and  other  lands,  603. 
where  mortgagee  holds  other  securities,  601. 

subsequent  mortgagees,  601. 
where  portions  alienated  have  been  released,  602. 
order  of;  direction  for  order  of  alienation,  592. 
issued  without  authority,  671. 

not  relieve  purchaser  from  completing  purchase,  671. 
staying  sale,  564. 

where  mortgagor  owns  one  tract  in  own  right  and  the  other  as 
trustee,  590. 
parcels ;  conveyed  by  mortgagor,  sold  in  inverse  order  of  alienation ; 
general  rule,  584. 
discretion  of  court,  567  et  seq. 

inverse  order;  rule  applicable  to  conveyances  by  grantees,  590. 
rule  in  Iowa,  Kentucky,  and  Georgia ;   contribution  and  not 
inverse  order,  589. 
order  of  alienation ;  direction  in  decree,  592. 
inverse  order,  494,  590. 

rule  as  between  general  liens  and  subsequent  incumbrances 

on  parcels,  590. 
rule  not  enforced  if  it  would  work  injustice,  590. 
various  and  successive  grantees,  equities,  591. 
under  New  York  code,  570. 
parol  trust,  effect  on,  698. 

parties;  having  prior  liens;  not  affected  unless  joined,  683. 
passes  only  title  of  mortgagor  at  date  of  mortgage,  488. 
persons  making,  acts  as  officer  of  court,  533. 
place  of ;  in  Buffalo,  554. 
in  New  York,  554. 

must  be  made  at  place  fixed  by  instrument,  938. 
possession  of  purchaser;  compelling  delivery,  722. 

remedies  and  proceedings,  722  ct  seq. 
postponement  and  adjournment,  606. 
presumption  of  validity,  649. 
proceedings  stayed  by  payment,  583. 

subsequent  default,  583. 
Purchaser. 

acquires  no  title  to  portion  of  premises  released,  710. 

acquires  title  of  both  mortgagor  and  mortgagee,  683. 

affected  with  notice  of  defects  of  parties  appearing  on  record,  670. 

assignment  of  bid,  678. 

rights  of  assignee,  678. 
becomes  assignee  of  lease  for  years,  683. 


GENERAL    INDEX..  2043 

References  arc  to  Sections. 

SALE.— continued. 

Purchaser — continued. 

becomes  equitable  assignee  to  extinguish  liens  of  junior  incum- 
brancers not  parties,  109. 
chargeable  with  notice  of  defects  and  irregularities  appearing  on 

record,  670. 
confirmation  of  sale  prerequisite  to  possession  in  some  states,  722. 
defective  title;   can  not  correct  by  applying  proceeds  to  incum- 
brances not  held  by  parties,  675. 
delay  in  perfecting  title,  679. 

not  required  to  pay  interest,  679. 
delivery  of  deed  necessary  to  confer  right  to  possession,  681. 

rents  and  profits,  681. 
discharged  from  completing  purchase,  668. 

re-imbursement  for  disbursements,  costs,  etc.,  668. 
efifect  of  appeal  and  reversal  upon  title  of,  721. 
enforcement  against,  664. 

acceptance   by   court   and   confirmation   prerequisite   in   some 

states,  664. 
application  may  be  made  by  motion,  664. 
compelling  completion,  664. 
defects  of  title  known  at  time  of  sale,  669. 
error  in  decree  in  describing  premises,  711. 

amendment,  711. 
in  v/hat  tribunal,  664. 
not  barred  by  lapse  of  time  or  death  of  parties,  664. 


not 


not 


f  title  defective,  667. 

f  court  had  no  jurisdiction,  667. 

f  doubtful,  676. 

f  interest  not  same  represented  in  terms  of  sale,  667. 

f  liable  to  litigation,  667. 

f  merely   equitable,  667. 

f  necessary  defendant  not  served,  667. 

f  outstanding  dower  right  exists,  668. 

f  party  not  served,  675. 

f  proceedings  void,  667. 

f  subsequent  incumbrancer  not  made  party,  675. 

f  taxes,  incumbrances,  etc.,   not  paid  off,  667. 

f  there  are  prior  incumbrancers,  668. 

f  title  not  marketable,  667,  675,  676. 

f  without  jurisdiction,  675. 

n  case  of  subsequent  resale  and  approval,  667. 

n  case  exposed  to  litigation,  667,  676. 
not  in  case  title  defecti^ve,  667,  675. 

unless  corrected  or  cured,  667,  675. 
when  title  doubtful,  667. 
where  proceedings  void,  675. 


2044  GENERAL    INDEX. 

References  are  to  Sections. 
SALE — con  tinued. 

Purchaser — continued. 

enforcement  against  agent  bidding  in  his  own  name,  664. 
entitled  to  fixtures,  714. 

exceptions  to  rule,  715. 
entitled  to  marketable  title,  667,  675,  676. 
excused  from  completing  purchase;  defect  of  parties,  668. 
for  defects  of  title  not  known  at  date  of  sale,  668. 
for  partial  failure  of  title,  677. 
re-imbursement,  668. 
failure  to  complete  purchase ;  resale.  666. 

order  to  show  cause,  666. 
is  mortgagor  as  to  vendee  of  mortgagor  in  possession,  683. 
is  quasi  party;  subject  to  jurisdiction  of  court,  664. 
liable  for  taxes  on  land,  705. 
liability  ceases  upon  resale  and  approval,  667. 
may  cut   off  subsequent  incumbrancer  who  is  a  party,  by  strict 

foreclosure,  181. 
may  require  accounting  of  rents,  taxes,  and  disbursements  for  im- 
provements, on  redemption  by  omitted  judgment  creditor, 
184. 
misdescription  of   mortgaged   property;   correction,  710. 
mortgagor  not  precluded  from  acquiring  outstanding  or  paramount 

title  against,  670. 
mortgagor  not  required  to  protect  title  of,  where  mortgage  con- 
tains no  covenant  of  warranty,  670. 
neglect  to  complete  purchase,  665. 
chargeable  with  taxes,  665. 
resale ;  costs  and  expenses,  665. 
may  be  ordered,  665. 

relief  from  deficiency  if  terms  different,  665. 
terms  and  conditions,  665. 
no  right  to  possession  until  delivery  of  deed,  718. 
not  acquire  title ;  as  against  prior  lienholders  not  made  parties, 
683. 
to  lands  not  described  in   mortgage,  710. 

although  described  in  complaint  and  judgment,  710. 
not  compelled  to  accept  doubtful  title,  667. 
or  mere  equitable  estate,  667. 
or  title  which  may  expose  him  to  suit,  667. 
no  title;  if  decree  is  void,  721. 

until  expiration  of  legal  time  for  redemption,  713. 
not  maintain  possessory  action  until  time  for  redemption  expired, 

713. 
obligations  of,  697. 

omission  from  mortgage  of  portion  intended  to  be  covered,  711. 
purchaser  protected  in  possession,  711. 


GENERAL    INDEX.  2045 

References  are  to  Sections. 
SALE — contimied. 

Purchaser — continued. 

order  to  complete  sale ;  attachment,  624. 

partial  failure  of  title;  protection  in  possession,  711, 

possession ;  action  at  law  not  necessary,  723. 

compelling  delivery  of ;  remedies  and  proceedings,  722  et  seq. 
dispossession  of  party  obtaining  possession  pendente  lite,  723. 
not  delivered  as  against  person  in  possession  under  legal  pro- 
ceedings under  claim  of  right,  723. 
nor  against  person  not  a  party,  723. 
powder  of  court  to  deliver,  723. 
remedies  under  New  York  code,  724. 

writ  of  assistance,  725. 
right  to,  upon  compliance  with  terms  of  sale,  723. 
summary  process,  723  et  seq. 

under  New  York  code,  732. 
tenant  in  possession  under  hostile  claim,  not  dispossessed,  723. 
writ  of  assistance,  725  ct  seq. 

dispossession  of  holder  of  paramount  title,  731. 
granting  of,  discretionary,  731. 
how  obtained,  725,  726. 
remedy,  when  improperly  granted,  729. 
to  dispossess  tenant,  730. 
when  fully  executed,  727. 
who  entitled  to,  728. 
who  may  be  dispossessed,  727. 
purchase  by  mortgagee,  610. 
refusal  to  complete  purchase,  675. 
reference  to  investigate  title,  675. 
resale;  costs  and  expenses,  674. 
release   from  completing  purchase,  671. 

application  for  must  be  made  within  reasonable  time,  679. 

for  jurisdictional  defects;  after  confirmation,  671. 

for  mistaken  notion  of  law,  679. 

irregularities  prior  to  judgment,  671. 

not  after  confirmation,  for  errors  in  judgment  or  decree,  671. 

remedy  in  case  of  irregularity,  671. 
not  because  of  insane  defendants ;  service,  672. 
not  because  order  of  sale  was  issued  without  authority,  671. 
not  for  mere  formal  irregularities,  674. 
not  question  validity  of  mortgage,  671. 
partial  failure  of  title,  677. 

title  different  from  that  announced,  677. 
where  deed  does  not  state  whose  title,  etc.,  affected,  709. 
where   infants  are  defendants,  673. 
remedy ;  in  case  of  defective  title,  670. 
and  process  to  obtain  possession,  681. 


2046  GENERAL    INDEX. 

References  are  to  Sections. 
SALE — continued. 

Purchaser — continued. 
remedy — continued. 

for  formal  irregularities ;  appeal,  674. 

to  compel  completion  of  sale,  where  deed  not  ready  at  time 

fixed,  708. 
where  mortgage  executed  by  mistake,  on  property  of  another, 
710. 
right  to  have  sale  completed,  679. 

not  affected  by  appeal  from  order  refusing  resale,  679. 
right  to  insist  upon  compliance  with  terms,  679. 
right  to  rents  and  profits,  718. 
sale  during  wrong  term  of  court  does  not  operate  as  assignment 

of  debt  to,  674. 
subjects  himself  to  jurisdiction  of  court,  611,  664. 
surrender  of  possession  to,  waives  formal  irregularities.  674. 
takes  only  actual  estate  covered,  although  mortgage  purports  to 
cover  greater   estate,  670. 
permanent  improvements,  716. 

risk  of  defects  of  title,  existing  prior  to  date  of  mortgage,  670. 
same  estate  as  would  have  vested  in  mortgagee,  682. 
title  of  mortgagor,  483,  670,  681. 

and  of  mortgagee  at  date  of  mortgage,  670,  682. 
title  to  emblements,  717. 
title;  co-extensive  with  description  in  mortgage,  bill  and  decree, 
711. 
as  affected  by  time  for  redemption,  713. 
not  absolute  until  accrument  of  right  to  deed,  713. 
not  affected  by  irregularity  in  proceedings,  721. 

nor  by  defect  in  judgment,  721. 
relates  back  to  date  of  delivery  of  mortgage,  700,  712. 
when  chargeable  with  interest  on  purchase  money,  679. 
when  excused  from  comipleting  purchase,  667. 
when  presumed  to  know  condition  of  title,  670. 
when  takes  title  free  from  easement  reserved  by  mortgagor,  712. 
who  may  purchase,  609. 

plaintiff;  setting  aside  sale,  625. 
redemption ;  right  cut  off  by  sale  and  confirmation,  682. 
reference;  to  compute  amount  due,  520  et  seq. 

finding  as  to  how  premises  should  be  sold,  520. 
to  investigate  title  on  refusal  of  purchaser  to  accept.  675. 
to   sell,    should  be   required  by  decree   to   report  amount  of  de- 
ficiency, 222. 
rents  and  profits;  between  sale  and  delivery  of  possession,  681,  702. 
purchaser  not  entitled  to  until  delivery  of  deed,  681. 
right  of  purchaser  to,  718. 


GENERAL    INDEX.  2047 

Rejerences  are   to  Sections, 
SALE — continued. 
Report. 

becomes  act  of  court  by  confirmation,  662. 
confirmation,  614,  656,  663. 

defects  cured  by,  627. 
contents ;  what  must  be  shown,  613. 
failure  to  make  at  next  term,  618. 

setting  aside  sale,  618. 
necessity;  exceptions,  612. 
necessity  of  notice  of  filing,  614. 
notice  of  motion  for  confirmation,  614. 
not  prerequisite  to  deed,  680. 
should  precede  delivery  of  deed,  680. 

but  not  where  time  allowed  for  redemption,  680. 
should  state  amount  of  deficiency,  615. 
substituted  or  supplemental  report ;  notice,  616. 
restraining,  565. 

Nebraska  rule,  564. 
right  of  beneficiary  in  trust  deed  to  purchase  at  sale  under  power,  320. 
right  of  bidder;  to  transfer  bid  to  another,  556. 

to  withdraw  bid  before  hammer  falls,  556. 
right  of  court  to  set  aside  because  special  officer  did  not  sell,  620. 
right  of  heirs  of  deceased  mortgagor  to  purchase  at,  609. 
right  of  mortgagor  to  purchase  at  sale  under  power,  320. 
right  of  officer  making  sale  to  purchase,  609. 
right  of  officer  to  refuse  to  receive  checks,  556. 
right   of    purchaser   to   reimbursement    for    improvements   on   setting 

aside,  652. 
right  to  sell  on  failure  to  pay  interest,  56. 
Setting  Aside  Sale,  and  Resale. 
accident ;  surprise,  644. 

advance  on  resale;  opening  biddings,  626.  640. 
after  confirmation ;  for  accident  or  mistake,  662. 
Alabama  doctrine,  617. 

all  facts  connected  with  sale  and  equitable  interests  of  parties  con- 
sidered on  application,  624. 
allowance  or  disallowance  discretionary,  619. 
appeal  from  order  refusing  resale,  654. 

does  not  affect  right  of  purchaser  to  have  sale  completed,  679. 
application;  addressed  to  court's  discretion;  when,  618. 
may  be  made  at  any  time  before  confirrrtation,  614. 
must  be  made  within  reasonable  time,  649. 
'  arrangements  between  parties  not  ground  for,  when,  618. 

assignor  of  mortgage,  with  guaranty  of  payment,  not  notified  of 

time  and  place,  no  ground  for,  618. 
at  whose  instance,  620. 
because  of  purchase  by  plaintiff,  625. 


2048  GENERAL   INDEX. 

References  are   to  Sections. 
SALE — continued. 

Setting  Aside  Sale,  and  Resale — continued. 

bidder's  liability  ceases  upon  resale  and  approval,  667. 

charging  purchaser  with  costs  and  expenses  of  resale,  674. 

costs  on  resale,  1000. 

de  non  alienando  clause,  617. 

destroys  title  of  purchaser  and  his  grantees,  652. 

discretion  of  court,  619,  663. 

appeal  from,  654. 
disobedience  of  instructions  by  officer,  647. 
disregard  by  officer  of  written  request  from  plaintiff,  627. 
effect  upon  purchaser,  652: 
equities  of  all  parties  to  be  considered,  618. 
excusable  mistakes,  650. 
failure  of  mortgagor  to  appear,  627. 

failure  of  mortgagor  to  have  sale  set  aside  before  expiration  of 
time  allowed  for  redemption,  680. 

technical  objections  waived,  680. 
failure  to  sell  in  separate  parcels,  624,  637. 
false  statements ;  generally,  646. 

preventing  bids,  646. 
for  abuse  of  discretion  by  officer,  606. 
for  accident  or  mistake,  627. 
for  benefit  of  infants,  653. 
for  defect  of  parties,  624. 
for  failure  to  sell  at  proper  place,  555. 
for  failure  to  make  report  at  next  term  after  sale,  618. 
for  fraud,  unfairness,  etc.,  620,  627. 
for  irregularities,  unfairness,  etc.,  623,  624. 

in  giving  notice,  618. 
for  lack  of  bidders,  624. 
for  non-compliance  with  terms,  619,  624. 
for  sale  of  parcels  in  lump,  624. 
for  want  of  proper  appraisement,  540. 
for  what  reasons  granted  or  denied,  624. 
fraud ;  appeal  from  order,  654. 

inducement  to  buy  certificate  of  foreclosure,  649. 

misconduct,  645. 
general  discussion  of  matters  pertaining  to,  617  et  seq. 
good  reason  must  be  shown,  618. 
grounds  for,  627. 

abuse  of  discretion  by  officer,  638. 

accident  and  surprise.  644. 
California   doctrine,  644. 

date  of  sale  in  advertisement  wrong,  627. 

effect  on  purchaser  of  order,  652. 

excusable  mistake,  650. 


GENERAL    INDEX.  2049 

References  are   to  Sections, 
SALE — continued. 

Setting  Aside  Sale,  and  Resale — continued. 
grounds  for — continued. 

for  benefit  of  infants,  653. 
foreclosure  without  authority,  627. 
Minnesota  doctrine,  627. 
Missouri  doctrine,  627,  628. 
fraud  and  misconduct,  645. 
inadequacy  of  price  brought,  627,  640. 
California  rule,  640. 
gross  inadequacy  sufficient,  640. 
in  case  of  sale  under  a  power,  641. 
Kansas  rule,  640. 
Kentucky  rule,  640. 
Maryland  rule,  640. 
Minnesota  rule,  640. 
sale  set  aside  for,  when,  640. 
New  Jersey  rule,  640. 
New  York  rule,  640. 
objection  to  be  taken,  when,  642. 
interference  with  bidders,  627. 
irregularity  in  conduct  of  sale,  638. 

deed  void  where  sale  made  after  report  filed,  637. 
in  sale  under  power,  638. 
Missouri  doctrine,  638. 
Nebraska  doctrine,  637. 
New  York  doctrine,  637. 
waiver  of,  637. 
Washington  doctrine,  637. 
Wisconsin  doctrine,  637. 
misleading  information  given  out,  627. 
non-observance  of  custom  of  auctioneers  not  when,  618. 
on   foreclosure  by  advertisement,  944. 
sale  en  masse  instead  of  in  parcels,  627. 
terms  imposed,  651. 
unsuitableness  of  hour,  627. 
usury  in  contract,  636. 
how   accomplished ;   proper  proceedings ;   application,   notice,   etc., 

622. 
illness  of  mortgagor,  646. 
in  strict  foreclosure,  978. 
inadequacy  of  consideration,  627,  640,  647,  650,  653. 

relief  of  infants,  653. 
indemnity  of  purchaser  for  improvements,  652. 
irregularities,  627. 

is  matter  of  favor,  and  not  of  right,  619. 
is  question  of  practice,  619. 
Mortg.  Vol.  II.— 129. 


2050  GENERAL    INDEX. 

References  are   to  Sections. 
SALE — contin  ucd. 

Setting  Aside  Sale,  and  Resale — continued. 
judgment  for  too  large  amount,  618. 
letters  of  administration  irregularly  granted,  618. 
Louisiana  rule,  617. 
misleading  statements  and  representations,  647. 

by  officer,  647. 
mistake ;  as  to  day  of  sale,  650. 

in  description  of  premises,  432. 

of  defendant,  as  to  his  liability,  647. 
necessity  of  notice  of  motion,  622. 
neglect  of  purchaser  to  comply  with  terms,  664. 
neglect  to  complete  purchase,  665. 

order  to  show  cause,  666. 
negligence  in  objecting;   acquiescence,  648,  649. 
non-attendance  of  bidders,  627. 

non-observance  of  custom  of  auctioneers,  not  cause  for,  618. 
not  after  statutory  period  for  redemption,  649. 
not  because  copy  of  decree  did  not  accompany  order,  628. 
not  because  mortgage,   by   mistake,   covers   property   of   another, 
710. 

nor  for  irregularity,  where  parties  interested  are  not  preju- 
diced, 618. 

nor  for  want  of  knowledge  by  party  of  time  and  place,  624. 

nor  to  protect  party  against  consequences  of  his  own  negli- 
gence or  laches,  620. 

nor  when  equities  are  in  favor  of  purchaser,  624. 

nor  when  fairly  made  and  free  from  fraud,  618,  624. 
not  because  of  constructive  service,  628. 
not  because  of  defect  in  order,  628. 

not  because  of  pendency  of  motion  to  vacate  decree,  628. 
not  because  order  of  sale  was  issued  without  seal  of  court,  628. 
not  because  order  was  returned  after  60  days,  628. 
notice  indefinite  as  to  time  and  place.  647. 

of  motion,  619. 
objections  waived  by  delay,  649. 
order  granting  or  denying,  not  appealable,  619. 
parties  must  move  promptly,  619. 
prevention  of  fair  competition  in  bidding,  627. 
proceedings  on  resale,  655. 
promise  to  have  sale  adjourned,  646. 
purchaser;  restored  to  former  position,  652. 

to  account  for  rents  and  profits,  652. 
reimbursement ;  of  former  purchaser  upon  resale,  668. 

of  purchaser,  652. 
Resale. 

advance  necessary  to  secure,  626. 


GENERAL    INDEX.  2051 

References  are   to  Sections. 
SALE — continued. 

Setting  Aside  Sale,  and  Resale — continued. 
Resale — contimied. 

at  instance  of  part  owner  when,  626. 

denied  when,  624. 

grounds   for,  627. 

holder  of  second  lien  cannot  have  when,  624. 

imposing  terms  on,  626. 

in  case  of  failure  to  comply  with  terms  of  sale,  624. 

in  case  of'  mistake  regarding  the  property,  624. 

in  case  of  trust  deed  after  delivery  under  first  sale,  624. 

unnecessary  in  suit  to  correct  description,  624. 

what  advance  necessary,  626. 

when  application  for  granted,  624. 

where  a  larger  sum  can  be  realized,  624. 

where  the  plaintiff  is  purchaser,  944. 

without  imposing  conditions,  624. 
sacrifice  of  property,  627. 
sale  at  improper  time,  627. 
sale  of  parcels  together,  618,  646. 
scarcity  of  bidders,  627,  639. 
statements  preventing  bidding.  647. 
summary  application  in  original  suit,  622. 
terms  and  conditions  of  resale,  651,  665. 

different  from  those  authorized,  or  usual,  637. 

imposed  upon  party  applying,  651,  665. 
time  of  application  for,  536,  623. 

doctrine  of  federal  courts,  623. 

Illinois  doctrine,  623. 

in  case  of  excusable  neglect,  623. 

Iowa  doctrine,  623. 

Michigan  doctrine,  623. 

Minnesota  doctrine,  623 

Mississippi  doctrine,  623. 

Missouri  doctrine,  623. 

New  York  doctrine,  623. 

Pennsylvania  doctrine,  623. 
what  must  be  shown,  620. 
when  application  for  resale  granted,  617,  624. 
when  application  for  resale  not  granted,  618,  628. 

because  advertised  during  debtor's  absence,  628. 

because  of  agreement  between  persons  to  buy  jointly,  628. 

because  credit  given,  628. 

because  of  collusion  between  owner  of  equity  and  purchaser, 
628. 

because  debtor  ill  at  time  of  sale,  628. 

because  of  default  on  guardian's  denial,  628. 


2052  GENERAL    INDEX, 

References  are   to  Sections. 
SALE — continued. 

Setting  Aside  Sale,  and  Resale — continued. 
who   may   have   sale   set   aside — continued. 
because  of  defective  notice,  when,  630. 
because  of  defective  title,   632. 

because  of  depression  in  business  at  time  of  sale,  628. 
because  excessive  costs  taxed,  628. 
because  of  failure  to  file  duplicate  certificate,  628. 
because  of  few  bidders,  628. 
because  holder  of  mortgage  member  of  firm  agreeing  to  sell 

at  private  sale,  628. 
because  of  inability  of  mortgagor  to  obtain  money  due  him, 

628. 
because  of  inaccuracy  of  auctioneer's  statement  as  to  incum- 
brances, 631. 
because  of  inaccuracies  in  recital  in  public  notice,  628. 
because  of  inadequacy  of  price  brought,  628,  640. 
because  of  insanity  of  mortgagor  subsequent  to  execution  of 
mortgage,  628. 

Indiana  doctrine,  628. 

New  York  doctrine,  628. 
because  made  upon  credit,  628. 
because  of  misfortune  of  mortgagor,  628. 
because  of  non-residence  of  defendant,  634. 
because  of  offer  of  increased  price,  628. 
because  officer  making  wrongly  styled,  628. 
because  person   other   than   one    designated   bid   in   property, 

628. 
because  perversion  of  power,  628. 

because  resident  defendant  served  by  publication,  628. 
because  sale  not  made  at  front  door  of  court  house,  628. 

Missouri  rule,  628. 
because  service  on  wife  in  community  made  by  delivery  to 

husband,  628. 
because  sold  for  larger  sum  than  due,  628. 

California  rule,  628. 
because  of  subsequent  settlement,  628. 
because  times  hard  and  money  scarce,  628. 
because  of   uncertainty   of    description  of   homestead,  633. 
because  of  usury,  636. 
in  sale  under  agreement,  629. 
no  injury  shown,  628. 
when  sale  made  under  power,  617. 
who  may  have  sale  set  aside,  620. 
judgment  creditor  when,  620. 

New  York  rule,  620. 

Pennsylvania  rule,  620. 


GENERAL    INDEX.  2053 

References  are   to  Sections. 

SALE — continued. 

Setting  Aside  Sale,  and  Resale — continued. 

when  application  for  resale  not  granted — continued. 
junior  lienholder  when,  621. 
mortgagee  conducting  cannot  when,  620. 
mortgagor  relieved  from  bond  can  not,  620. 
parties  served  with  summons  can  not  when,  620. 
statutory  foreclosure;  adjournment,  607. 
stay  of,  by  payment ;  subsequent  default,  583. 
subrogation  of  purchaser  at,  704. 
succession  mortgaged,  696. 
summary  process ;  to  put  purchaser  into  possession,  723. 

under  New  York  code,  732. 
sum  paid  for  premises  conclusively  determines  their  value  as  between 

the  parties  to  the  suit,  225. 
surplus  arising  on.     See  Surplus. 
tax  title  holder ;  when  not  affected  by,  682. 
tenant;  dispossession  by  writ  of  assistance,  730. 
terms  and  conditions,  556  ct  seq. 
announcement,  556. 
bids  and  acceptance,  556. 
credit;  time,  561. 
different  from  those  authorized ;  remedy,  556,  679. 

agreement  between  mortgagee  and  purchaser,  556. 
allowance  of  a  "short  time,"  556. 
credit  given,  561. 

improper  when,  556. 
decree  for  sale  on  credit  improper  when,  556. 
deductions  from  purchase  price  for  taxes,  etc.,  558. 
publication  of,  560. 
sale  on  credit.  561. 
South  Carolina  rule,  556. 
where  only  part  of  debt  due,  557. 
timber  on  land  passes  under,  706. 
Time  of. 

at  hour  advertised,  553,  554. 
at  place  advertised,  554,  938. 
at  door  of  court  house,  555. 

new  and  unfinished  structure,  555. 
where  court  house  destroyed  by  fire,  555. 
Minnesota  rule,  555. 
Missouri  rule,  555. 
where  there  is  no  court  bouse,  555. 
Texas  doctrine,  555. 
hour  of  day,  553. 

protection  of  debtor ;  postponement,  564. 
public  holiday,  Missouri  rule,  553. 


2054  GENERAL   INDEX. 

References  are   to  Sections. 
SALE — continued. 
Title  on. 

become  absolute  when,  483.    See  Title. 

relates  back  to  date  of  executing  mortgage,  706,  712. 
to  mortgagee,  redemption  after,  1158. 

to  satisfy  senior  and  junior  mortgage  foreclosed  in  one  action,  333. 
under  decree;  effect  of,  14. 

effect  of  appeal  after,  14. 

effect  on  second  mortage  where  purchaser  pays  nothing,  178. 
under  invalid  mortgage  carries  no  title,  691. 
under  junior  mortgage,  700. 

purchaser  acquires  only  equity  of   redemption,  700. 
under  power.    See  Power. 

contents  of  notice,  853. 
under  riparian  mortgage,  703. 

title  of  purchaser  in  reclaimed  strip,  703. 
under  trust  deed,  558. 

usury  does  not  affect  title  of  purchaser  of,  when,  707. 
validity  of ;  purchase  by  mortgagee,  320. 

without  appraisement,  540. 
what  required  to  set  aside  for  failure  to  sell  in  separate  parcels,  637. 
when  may  be  made ;  statutory  period ;  hour  of  day,  553. 
where  appraisement  is  set  aside  by  court,  540. 

validity  of,  540. 
where  made ;  place,  554. 

where  property  situated  in  two  counties  or  boroughs,  554. 
who  may  adjourn,  606. 

who  may  impeach  purchase  by  mortgagee  at  own  sale,  320. 
who  may  purchase  at.    See  Conduct  Of,  this  title, 
whole  property  subject  to,  562. 
without  appraisement  as  ground  for  resale,  624. 
without  sufficient  power  of  sale,  952. 

rights  of  purchaser,  952. 
writ  of  assistance ;  to  put  purchaser  in  possession,  725  et  seq. 
SATISFACTION. 

new  mortgage  accepted  for  old  as,  469. 
SCHOOL-FUND  MORTGAGE. 

foreclosure;  complaint;  description  of  premises,  359. 
SCHOOL  TAXES. 

can  not  participate  in  surplus  moneys,  1020. 
SEAL. 

detachment  after  deposit  for  record ;  effect,  399. 
SEARCH. 

allowance  for.    See  Disbursements. 

secret  and  resultant  trusts  barred  by  foreclosure,  694. 


GENERAL    INDEX,  2055 

References  are   to  Sections. 

SECOND  MORTGAGE. 

prevention  of  foreclosure  of  as  consideration  for  extension  of  time  of 
payment,  467. 
SERVICE.    See  Summons. 
SERVICES. 

rendered;  set-off;  foreclosure,  443. 
SET-OFF  AND  COUNTER-CLAIM. 

advances;  mortgage  to  secure;  failure  to  make,  449. 
against  assignee  of  mortgage,  443. 
against  mortgagee  in  possession,  805. 

right  of  mortgagor  to  appointment  of  receiver,  805. 
agreement  to  apply  profits  on  mortgage  debt,  447. 
allowable  on  foreclosure,  440  et  seq. 

affirmative  relief  by,  if  desired,  must  be  demanded  in  answer,  447. 
as  defense  against  fraudulent  assignee  of  mortgage,  412. 
breach  of  covenant  as  basis  of,  447. 
can  not  be  an  independent  claim,  444. 
claim  arising  from  transaction  not  connected  with  note  or  trust  deed 

cannot  be  set  up,  446. 
claim  for  rent  as,  446. 

conversion  of  saw  mill  covered  by  mortgage  as,  447, 
counter-claim  arising  on  contract,  441. 
damages,  448,  449. 

breach  of  covenant  to  release  portions  sold  by  mortgagor,  449. 
excess  of  price  paid,  448. 
failure  of  title,  448. 
failure  to  make  advances,  449. 
for  fraud;  concealment,  449. 
not  recover  interest,  448. 
debt  due  mortgagor,  440. 

delay  in  foreclosing;  loss;  depreciation  in  value,  446. 
failure  of  mortgagee  to  notify  insurance  company  of  change  of  owner- 
ship as,  446. 
fraud ;  in  action  for  purchase  money,  424. 

recoupment  of  damages  on  foreclosure,  423. 
illegal  interest ;  usury,  446. 
in  action  on  note;   invalidity  of   foreclosure  proceedings  on  another 

note  of  same  series,  447. 
insolvency  of  plaintiff,  442,  447. 

claim  in  favor  of  owner  of  equity  of  redemption,  447. 
invalidity  of  mortgage ;  reply,  447. 
known  to  maker  on  giving  note  and  mortgage  cannot  be  set  up  in  suit 

on  note  and  mortgage,  446. 
mistake  as  to  quantity  of  land,  434. 

correction  ;   foreclosure,  434. 
must  be  based  upon  legal  obligation;  not  upon  equitable  or  supposed 
right,  447. 


2056  GENERAL    INDEX. 

References   are   to  Sections. 

SET-OFF  AND   COUNTER-CLAIM— co»//;n<eJ. 

must  be  debt  due  and  payable,  445. 

must  be  in  favor  of  defendant  and  against  plaintiff,  444. 

must  be  pleaded,  447,  450. 

must  tend  to  diminish  or  defeat  recovery,  442,  444. 

necessity  for  agreement  as  to,  446. 

not  of  unliquidated  damages,  445. 

of  debt  due  at  date  of  filing  complaint,  446. 

of  partial  payment ;  application,  444. 

of  road  tax;  when  permissible;  necessary  averments,  445. 

of  services  rendered  to  be  applied  on  mortgage,  443. 

outstanding  claim ;  payment  of,  497. 

over  payment  by  mortgagor,  440. 

payment ;  need  not  be  pleaded  as,  475. 

requisites ;  what  proper,  444  et  seq. 

right   of  co-defendant  to  counter-claim   an   individual   claim   against 
mortgagee,  446. 

several  f  orclosures ;  election  in  which  to  plead  set-oif ,  445. 

various   set-offs  in   foreclosure,  440  et  seq. 

who  may  plead  or  set  up  personal  liability,  442. 
SETTING  ASIDE  SALE. 

See  Sale;   setting  aside.  618  et  seq. 
SEVERAL  NOTES  SECURED  BY  ONE  MORTGAGE,  owner  of  one 

may  foreclose,  lOL 
SHERIFF. 

certificate  of  publication,  552. 
how  defect  in  cured,  552. 

deputy  may  make  sale,  537. 

failure  to  return  execution,  876. 
judgment  against,  876. 

payment  to  on  redemption.  1176. 

return  as  to  publication  in  legal  paper,  555. 
sufficiency  of,  555. 

return  of ;  variance  between  publisher's  affidavit  and,  552, 
SPECIFIC  PERFORMANCE. 

by  purchaser  at  sale,  665. 

of  agreement  to  release  part  of  premises,  480. 
STATE  COMPTROLLER. 

a  proper  defendant  to  foreclosure  against  land  on  which  unpaid  state 
taxes  are  due,  196. 

successor  may  foreclose,   133. 
STATE  SUPERINTENDENT  OF  INSURANCE. 

successor  may  foreclose.  133. 
STATUTE  OF  FRAUDS. 

applies  to  sale  under  power,  912. 

foreclosure  sale;  memorandum.  611. 

parol  agreement  to  execute  mortgage,  part  performance.  331. 

sale  on  foreclosure  not  within,  611. 


GENERAL    INDEX.  2057 

References   are   to  Sections. 

STATUTE  OF  LIMITATIONS.     See  Limitation  of  Actions. 
as  to  right  to  redeem,  1135,  1247,  1249,  et  seq. 
bars  mortgage   foreclosure,  79. 
bars  right  of  redemption,  1249.     See  Redemption. 
running  of  statute;   as  affected  by  failure  of  mortgagee  to  exercise 
option  to  declare  entire  principal  due  on  default,  78. 

effect  of  payment  by  mortgagor's  widow  during  occupancy,  81. 
when  not  applicable  to  action  foreclosed,  80. 
when  statute  begins  to  run,  72,  78. 

where  time  for  payment  has  been  extended,  78. 
STATUTES. 

against  usury ;  construed  strictly,  410. 

limiting  foreclosure  to  time  for  recovery  of  debt.  80. 

making  cestuis  que  trust  necessary  defendants,   169. 

must  be  strictly  followed,  10. 

necessity  for  substantial  compliance  with  as  to  averment  in  complaint, 

347. 
prohibiting  action  on  note  and  mortgage  at  same  time,  273. 

not  applicable  where  land  situated  without  the  state,  273. 
provision  in  mortgage  contravening,  10. 
regulating  redemption ;  constitutionality,  1067,  1071. 
usury ;  lex  loci,  410. 
STATUTORY  FORECLOSURE;  ADVERTISEMENT, 
a  creature  of  the  statute,  912. 
adjournment  of  sale,  607. 
affidavits  on,  recording,  957. 
as  a  remedy,  6,  912. 

assignment  of  mortgage;  quit-claim  of  part  of  premises  to  assignee, 
915. 

extinguishment  of  right  to  foreclose,  915. 

passes  power  of  sale,  915. 
by  real  party  in  interest,  916. 

can  not,  in  New  York,  be  maintained  against  deceased  mortgagor,  un- 
less personal  representatives  have  been  appointed,  165. 
certificate  of  sale,  951. 

recording,  951. 
costs  and  disbursements  on,  1012  et  seq. 
damages;  unliquidated;  mortgage  to  secure,  914. 

can  not  be  foreclosed  by,  914. 
debt  partly  collected ;  pending  suit,  915. 
Deed  on  ;  see  Deed. 

necessity,  961. 

quit-claim;  to  part  of  premises;  to  assignee  of  mortgage,  915. 
extinguishment  of  right  to  foreclose,  915. 
defective  certificate,  951. 
defective  foreclosure;  omissions;  irregularities,  952. 

defect  of  parties,  952. 


2058  GENERAL    INDEX. 

References  are   to  Sections. 

STATUTORY  FORECLOSURE;  ADVERTISEMENT— co^hnw^d. 
failure  to  serve  proper  party,  952. 
setting  aside;  foreclosure  dc  novo,  952. 
execution;  in  suit  for  debt,  915. 

return    unsatisfied   prerequisite   to   foreclosure   by    advertisement, 
915. 
general  nature  of,  912. 
habitual  drunkard ;  mortgage  upon  property  of,  can  not  be  foreclosed 

by,  914, 
heirs  of   owner  of   equity  of   redemption,   not   necessary   defendants, 

161,  162. 
infant;  mortgage  executed  by,  can  not  be  foreclosed  by,  914. 
injunction;  restraining  sale;  when  granted,  945-947. 

amount  due  determinable  only  by  judicial  finding,  945. 

claim  of  larger  amount  than  due,  945. 

if  sale  inequitable,  945. 

mortgage  usurious,  945. 

not  if  conducted  according  to  statute,  945. 

not  on  account  of  disagreements  between  junior  incumbrancers, 

945. 
to  enable  appeal  to  be  taken,  945. 
to  restrain   resident  mortgagee  of  lands   without  the  state  from 

selling  at  public  sale,  913,  947. 
wrongfully  granted ;  damages,  946. 
insurance;  covenant  for;  breach,  914. 
is  exclusively  a  creature  of  statute,  912. 
judgment  creditors  must  be  made  defendants,  182. 
mortgagor  or  successor,  a  necessary  defendant,  137. 
notice ;  contents,  917,  928  et  seq.    See  Notice  of  S.\le. 
date  and  place  of  record  of  mortgage,  928. 
date  of  sale,  935. 

defective;  objections;  time  and  manner  of  making,  936. 
delivery  of  copy  to  county  clerk;  duty  of  clerk,  920. 
description  of  mortgage,  930. 
description  of  property,  929. 
must  be  subscribed,  921. 
names  of  parties,  928,  930. 
necessity,  917. 
place  of  sale,  931. 
posting,  919. 

postponement  of  sale;  publication,  etc.,  937. 
publication,  917  et  seq. 

change  of  name  of  publishing  paper,  918. 
consolidation  of  paper,  918. 
defective  publication ;  avoids  proceedings,  918. 
republication,  918. 


GENERAL    INDEX.  2059 

References   are   to  Scctiojis. 

STATUTORY  FORECLOSURE;  ADVERTISEMENT— cowfmM^d. 
Notice — continued. 

publication — continued. 

general  information  not  requisite,  918. 
Saturday  edition ;  printed  Friday,  918. 
validity  and  sufficiency,  917,  918. 
purpose  of  sale,  928. 
right  or  authority  to  foreclose,  928. 
service ;  by  mail ;  proof,  927. 
how  made,  926,  927. 
upon  whom,  921  et  seq. 

assignee  of  subsequent  incumrance,  921  et  seq. 
mortgagor  or  representatives,  921,  922. 
only  those  directed  by  statute,  921. 
subsequent  grantees  and  incumbrancers,  921  et  seq. 
wife  or  widow  of  mortgagor,  921,  924,  926. 
statement  of  prior  incumbrances,  934. 
subscription  ;  signature,  928,  935. 
sum  due,  928,  932,  933. 
terms  of  sale,  941. 
of  mortgage  executed  by  infant,  914. 
owner  of  equity  of  redemption  always  a  necessary  defendant,  where 

deed  is  recorded,  147. 
payment ;  extinguishes  power  of  sale,  915. 

extinguishes  right  to  foreclose,  915. 
pending  suit  for  debt;  discontinuance  prerequisite,  915. 
personal  representatives  of  mortgagor  necessary  defendants,  in  New 

York,  162.  165. 
postponement  of  sale,  937. 

notice ;  publication,  etc.,  937. 
prior   foreclosure   by   action ;    decree   of    second   sale    for   subsequent 

default,  915. 
proofs  of  proceedings;  affidavits,  953  et  seq. 
amendment,  956. 
code  provisions  generally,  953. 
common  law  proofs ;  publication,  954. 
conclusiveness,  954. 

effect ;  contradictory  ;  controverting,  959,  960. 
construction ;  certainty,  954. 
contents,  generally,  955. 
necessity   of    proofs,   954. 
recording;  filing,  957  et  seq. 
sufficiency  of  proofs.  954. 
terms  of  sale  omitted ;  oral  evidence,  954. 
provisions  of  statute  must  be  strictly  complied  with,  912.  913. 
purchase  by  mortgagee,  942. 
purchaser's  title,  951.    See  Title. 


2060  GENERAL    INDEX. 

References  are   to  Sections. 

STATUTORY  FORECLOSURE;  ADVERTISEMENT— co«fmM/i, 
record ;  necessity ;  effect  of  neglect,  913. 
recording  affidavits,  957. 
Sale  under. 

affidavits   on   recording,  957. 
binding  on  all  parties  when,  949. 
by  whom  conducted,  939,  941. 
certificate  of,  defective,  951. 
Deed  on.     See  Deed  this  title. 

unnecessary,  961. 
effect;  persons  concluded,  948-950. 

all  parties  bound  as  to  all  questions,  949. 

code  provisions,  948. 

effect  as  to  omitted  parties,  950. 

rights  of  tenants,  950. 
injunction  restraining,  945,  946. 
in  parcels,  940. 
notice  on,  917. 

affidavit  of  publication,  953  et  seq. 

amendment,  956. 

code  provisions  generally,  953. 

common  law  proofs;  publication,  954. 

conclusiveness,  954. 

controverting,  959,  960. 
effect;  contradicting,  959,  960. 

construction ;   certainty,  954. 

contents  generally,  955. 

necessity  of  affidavits,  954. 

publication ;  proof  of  ;  affidavits,  954  et  seq. 

recording;  filing,  957-960. 

sufficiency  of  proofs,  954. 

terms  of  sale  omitted ;  oral  evidence,  954. 
place,  938. 

postponement;  notice,  etc.,  937. 
public  or  private,  938. 

purchaser;  remedies  to  obtain  possession,  962. 
purchaser ;  summary  proceedings,  962. 
setting  aside,  944. 

foreclosure  de  novo,  952. 

grounds  for,  944. 
terms,  941. 

title  of  purchaser;  what  passes,  951. 

who  may  purchase;  mortgagee,  942. 

statutes ;  havmg  no  extra-territorial  force,  913. 

inapplicable  to  mortgages  on  property  in  other  states,  913,  947. 

injunction  to  restrain  sale,  947. 
stipulation  for,  913. 


GENERAL    INDEX.  2061 

References  arc   to  Sections. 

STATUTORY  FORECLOSURE;  ADVERTISEMENT— co»rnn<f(i. 

subsequent  incumbrancers  not  affected,  unless  made  defendants,  179. 

tender;  extinguishes  power  of  sale,  915. 

terms  of  sale,  941. 

under  power  of  sale,  a  matter  of  contract,  not  of  jurisdiction,  126. 

unliquidated  damages;  mortgage  to  secure,  914. 

what  constitutes,  3,  6. 

what  mortgages  may  be  foreclosed,  914. 

who  may  foreclose,  916. 

assignee  of  mortgage,  916. 

holder  of  mortgage  to  secure  notes  held  by  dififerent  parties,  916. 

personal  representatives,  916. 

persons  jointly  interested ;  joinder,  916. 

real  parties  in  interest,  916. 
STAY  OF  PROCEEDINGS. 

by  payment;  subsequent  default,  583. 

pending  appeal;  irregular  undertaking;  setting  aside  sale,  650. 

upon  payment,  pending  foreclosure,  of  overdue  installment,  327. 

vacated  on  day  of  sale,  607. 

attendance  of  party  procuring,  607. 
of  action  on  note  pending  foreclosure,  392. 
of  foreclosure ;  pending  action  at  law,  347. 

until  termination  of  ejectment  against  mortgagor,  496. 
STIPULATION. 

against  foreclosure;  during  life  time  of  mortgagor,  51. 
against  forfeiture;  does  not  prevent  action  to  declare  debt  a  lien,  51. 
as  to  default  in  paying  installments,  326,  327. 
barring  equity  of  redemption,  1038. 
for  attorney's  fee;  usury.     See  Costs,  1003-1006. 
for  foreclosure  on  breach  of  single  condition,  43. 
in  mortgage  for  appointment  of  receiver,  762. 

in  trust  deed ;  maturing  entire  debt  on  default  in  payment  of  any  note ; 
object  of  stipulation.  55. 
STOCKHOLDERS     See  Corporations. 
STRICT  FORECLOSURE. 

abolishment  of,  by  New  York  code,  970. 
against  whom  allowed,  966  ct  seq. 

judgment  creditor,  969. 

subsequent  mortgagee,  969. 

wife  of  mortgagor,  969. 
a  severe  remedy,  965. 
controlled  strictly  by  legal  principles,  5. 
costs  in,  986. 

court  of  equity  will  not  refuse;  when,  968. 
decree ;  title  vests  in  heirs,  not  in  representatives,  973. 
effect  of,  964. 
Illinois  doctrine,  968. 


2062  GENERAL    INDEX, 

References   arc   to  Sections. 

STRICT  FORECLOSURE— ro;jh>n((?£f. 
in  what  states  allowed,  966. 
in  what  states  not  allowed,  967. 
infants ;  action  and  decree  against,  974. 
judgment;  form,  contents,  etc.,  976. 

setting  aside ;  opening,  etc.,  978. 
jurisdiction ;  to  decree  in  another  state,  971. 
maintainable  in  another  state,  971. 
mortgagor  or  successor,  necessary  defendant,  137. 
nature  of,  3,  5,  963  ct  seq. 
New  York  doctrine,  969. 
no  judgment  for  deficiency  allowed  in,  964. 

not  allowed  where  there   are  other  creditors,  purchasers,  or  incum- 
brancers, 9f8. 
only  remedy,  when,  969. 
origin  of  remedy,  963. 
parties  to,  972. 

plaintiffs,  973. 

Louisiana  doctrine,  973. 

who  may  maintain,  973. 

who  necessary  defendants,  972. 
payment  pro  tanto,  964. 
pleadings  in;  form  and  sufficiency,  975. 
purchaser  at  sale  may  cut  off   subsequent   incumbrancers   not  made 

parties  by,  180. 
redemption ;  time,  etc.,  977. 
setting  aside  and  opening,  978. 
stipulation  delaying,  966. 

Alabama  rule,  966. 
under  New  York  code  of  civil  procedure,  5. 
when  allowed,  966  ct  seq. 

when  not  allowed;   Illinois  doctrine,  968. 
when  extinguishes  debt,  964. 
when  permitted,   5. 

where  estate  of  deceased  insolvent,  968. 
where  mortgage  covers  two  distinct  parcels,  966. 
Who  may  Foreclose. 

in  Indiana,  967. 

purchaser  under  foreclosure  sale,  969. 
SUBROGATION.    See  Assumption. 

by  one  advancing  money  to  pay  valid  first  mortgage,  taking  second 

usurious  mortgage  as  security,  409. 
equitable ;   theory  of   subrogation ;   allowing  mortgagee  benefit  of   as- 
sumption of  mortgage  by  purchaser,  246. 
of  lienor  paying  money  to  protect  lien,  851. 

claim  on  surplus,  851. 


GENERAL    INDEX.  2063 

References  are   to  Sections, 

SUBROGATION— coj2fmM^d. 

of  purchaser  at  foreclosure  sale,  704. 

Texas   doctrine,   704. 

where  owner  of  redemption  not  party,  704. 

where  sale  invalid,  704. 

where  sale  irregular,  704. 

where  three  judgments  sought  to  be  satisfied  by  one  sale,  704. 
taxes;  paid  by  mortgagor;  subrogation  to  rights  of  state,  516. 
SUBSEQUENT  INCUMBRANCERS. 

action  will  not  be  dismissed  because  they  are  not  made  parties,  179. 
a  lunatic,  idiot,  or  habitual  drunkard,  a  proper  defendant,  195. 

committee,  a  necessary  defendant,  195. 
a  necessary  defendant  being  married  woman,  does  not  alter  rule,  191. 
an  infant,  guardian  generally  a  necessary  defendant,  195. 
assignee  in  bankruptcy,  or  by  voluntary  assignment,  a  necessary  de- 
fendant. 194. 
assignees  of,  necessary  defendants,  188. 
assignees  pendente  lite,  not  necessary  defendants,  189. 
assuming  mortgage;  not  personally  liable  to  prior  mortgagee,  248. 
claim  on  surplus,  850.    See  Surplus  Moneys. 
deceased ;  personal  representatives  necessary  defendants,  193. 
effect  on  liens  of  foreclosure  of  prior  mortgage,  16. 
foreclosure ;  complaint ;  allegation  as  to  interests,  352. 
heirs,  devisees,  legatees,  and  annuitants  of,  not  necessary  defendants, 

192. 
holding  any  equitable  or  contingent  interest  in  lien,  usually  necessary 

defendants,  187. 
husband  of,  not  a  necessary  defendant,  191. 
infant,  a  proper  defendant,  195. 

may  be  made  defendants  on  their  own  application,  178. 
may  set  up  usury  as  defense  in  foreclosure,  411. 
mistake;  correction  as  against  in  foreclosure,  431. 
mortgagee ;  assignee ;  necessary  defendant,  187,  188. 

assignee  pendente  lite,  not  necessary  defendant.  189. 

being  married  woman,  does  not  alter  rule,  191. 

having  assigned  mortgage,  and  all  interest  therein,  not  necessary, 
198. 

having  been  paid  in  full,  not  proper  defendant,  186. 

not  made  a  party,  should  redeem,  180. 

owning  and  foreclosing  prior  mortgage,  must  set  forth  claim  upon 
junior  mortgage,  181. 

redeeming;  may  compel  accounting  for  rents  and  profits,  180. 

still  owning  mortgage,  necessary  defendant,  179. 

trustee  for  numerous  bondholders,  the  latter  not  necessary  defend- 
ants. 179. 

when  they  may  foreclose  their  own  mortgage,  instead  of  redeem- 
ing,   180. 

wife  of,  not  a  necessary  defendant,  191. 


2064  GENERAL    INDEX, 

References  are   to  Sections. 

SUBSEQUENT  INCUMBRANCERS— coH/mM<?^rf. 
necessary  defendants,  178. 

no  longer  holding  liens,  not  necessary  defendants,  186. 
not  barred  where  not  made  parties,  16,  179. 

may  be  cut  off  by  strict  foreclosure  conducted  by  purchaser  at 
sale,  180. 
redemption  from,  1200. 
wife  of,  not  a  necessary  defendant,  191. 
SUBSEQUENT  JUDGMENT  CREDITORS.    See  Judgment  Creditors. 
SUBSEQUENT  PURCHASERS. 

allegations  against  in  complaint,  341.    See  Complaint. 
SUCCESSION. 

sale  of  under  mortgage,  696. 
title  of  purchaser,  696. 
SUCCESSOR. 

in  office ;   may   foreclose  mortgage  to  his  predecessor,   in  his  official 

capacity,  133. 
of  assignee   in  bankruptcy  of   subsequent  incumbrancer,   a  necessary 

defendant,   194. 
of  executors  or  administrators  may  foreclose  mortgage  made  to  such 

executors  and  administrators  as  such,   124. 
of  guardian,  may  foreclose,  133. 
of  state  comptroller,  may  foreclose,  133. 
of  state  superintendent  of  insurance,  may  foreclose,  133. 
of  trustee  holding  subsequent  mortgage,  a  necessary  defendant,  179. 
of  United  States  loan  commissioners,  may  foreclose,  133. 
SUMMARY  PROCEEDINGS. 

by  purchaser  at  foreclosure  sale,  to  obtain  possession,  723. 
at  statutory  foreclosure  sale,  962. 

putting  purchaser  into  possession ;  under  New  York  code,  732. 
delivery  of  possession  to  purchaser  by,  723. 
to  obtain  possession,  962. 
SUMMONS. 

form  of ;  prescribed  by  New  York  code,  259. 

requisite  of,  259. 

Service. 

begins  action  in  New  York,  259. 

by  publication ;  effect  of  change  of  name  of  paper,  264. 
how  made,  in  New  York,  262. 

order  for  publication  must  be  shown  by  notice  annexed,  265. 
proof  of;  how  made,  265. 

requisites  of  affidavit  to  secure  order  for,  263. 
when  part  of  defendants  are  non-residents  or  absentees,  262. 
defective;  how  and  by  whom  taken  advantage  of,  388. 
must  generally  be  made  upon  guardian  or  committee  of  incom- 
petent person,   195. 
on  defendant  lunatics  and  incompetents;  when  not  necessary,  270. 


GENERAL   INDEX.  2065 

References  are   to  Sections. 
SUMMONS— continued. 
Service — continued. 

on  guardian  of  infant  defendant  under  fourteen  years,  necessary, 

268. 
on  infant  defendants,  necessary,  268. 
on  married  woman ;  vvhen  necessary,  267. 
on  widow,  necessarj-,  158. 
on  wife,  under  early  practice,  157. 
under  present  practice,  158. 

must  be  personal,  in  New  York,  158. 
publication ;  allowable  when  part  of  defendants  are  non-residents 
or  absentees,  262. 
effect  of  change  of  name  of  paper,  264. 
how  made,  in  Xew  York,  262. 
order  must  be  shown  by  notice  annexed,  265. 
proof  of ;  how  made,  265. 
requisites  of  affidavit  to  secure  order  for,  263. 
summons  may  be  served  b}',  on  unknown  owners,  266. 
requisites  of,  259. 

shown  on  motion  for  reference  to  compute  amount  due,  505-507. 
upon  infant  or  incompetent  person,  should  be  made  with  great 

care,  174. 
upon  unknown  owners,  may  be  by  publication,  266. 
within  sixty  days  after  filing  lis  pendens,  380. 
SUPERIXTENDENT  OF  INSURAX'CE. 

successor  may  foreclose,  133. 
SUPERVISORS.     See  Boards  of  Supervisors. 
SURETY.    See  Principal  and  Surety. 
SURPLUS  MONEYS. 

action  to  enforce  claim  to,  892. 
adjusting  equities,  855. 
application  for,  843,  882.  894. 

by  attachment  creditor,  849. 
by  cestuis  que  trust,  887. 

by  whom  to  be  made,  843,  894. 

form  and  contents,  894. 

litigating  questions  of  priority  on,  894. 

must  show  prima  facie  right,  894. 

notice  of  ;  necessity,  894. 

notice ;  who  entitled  to,  895. 

how  served,  895. 
presenting  proof  of  claims,  899. 
what  must  be  shown,  896. 

certificate  and  proof  of  deposit  of  surplus,  896. 
assignee  for  benefit  of  creditors,  right  to,  844. 
assignee  of  second  mortgagee,  right  to,  850. 
Mortg.  Vol.  II.— 130. 


2066  GENERAL    INDEX. 

References  are   to  Sections. 

SURPLUS  MO'S.^YS— continued. 

assignment;  of  mortgage,  as  collateral  security,  883. 

claim  of  assignee;  priority,  883. 
attachment  creditor  may  apply  for,  849. 
cestui  que  trust,  rights  in,  887. 

character ;  as  realty  or  personalty ;  property  belonging  to  infant,  842. 
whether  personal  or  real  property,  839,  840. 
conversion  under  will,  840. 
Massachusetts  doctrine,  841. 
confession  of  judgment;  as  indemnity;  priority.  875. 
confirmation  of  referee's  report,  909.     See  Reference,  this  title, 
definition;  what  constitutes,  831. 
Distribution. 

adjustment  of  equities  between  subsequent  incumbrancers,  855. 

action  to  enforce  claim  to,  892. 
attachment  creditor's  rights  in,  849. 
by  supreme  court,  891. 
cestui  que  trust  interest  in,  887. 
claims ;  must  be  liens  on  mortgaged  premises.  858. 
costs  and  disbursements  in  proceedings,  1017-1020. 
equitable ;  liens  on  two  funds,  859. 
special  and  general  liens,  859. 
foreclosure  against  executors,  873. 

priority  between  judgment  creditors  and  legatees,  874. 
general  directions,  831. 
•■  hypothecary  action  to  enforce  claim  in  Louisiana,  855. 

interest  of  life  tenant,  861. 
investment  for  persons  entitled,  833. 
judgment  for  deficiency  against  executors,  etc.,  892. 

remedy  of  mortgagee,  892. 
lessees  of  mortgaged  premises  no  claim  on,  847, 
lien  of  judgment  against  mortgagor,  871. 
liens  paid  in  order  of  priority,  856.  864. 
priorities,  how  determined.  857. 

equitable  priorities  between  subsequent  mortgagees,  864. 
of  moneys  not  applied  for ;  investment,  889. 
on  foreclosure  by  assignee  of  mortgage  as  collateral,  349. 
on  foreclosure  of  property  held  by  husband  and  wife  as  tenants 

by  entirety,  878. 
order  of,  898. 

appeal  from,  911. 

not  granted  until  expiration  of  time  for  filing  exceptions,  906. 
,  order  of  priority,,  856,  864. 

priority,  how  determined,  857. 
1  equitable  priorities  between  subsequent  mortgagees,  864. 

married  women's  equitable  right  to,  878. 


GENERAL    INDEX.  2067 

References  are   to  Sections, 

SURPLUS  MO^^YS— continued. 
DiSTRiBUTiox — continued. 

payment  into  court,  835  et  seq. 

foreclosure  by  advertisement,  837. 
payment;  into  supreme  court,  891. 
into  surrogate's  court,  837.  890. 
of  liens  in  order  of  priority,  856. 
priority ;  as  affected  by  agreement,  864. 
as  between  judgment  creditors,  871. 
as  between  judgment  lien  and  executory  contract  to  execute 

mortgage,  874. 
as  between  mortgage  and  mechanic's  lien,  870. 
as  between  second  mortgage  and  junior  judgments,  869. 
as  between  several  mortgages  securing  same  debt ;  parcels,  867. 
as  between  unrecorded  mortgage  and   subsequent  judgment, 

868. 
as  between  vendees  under  deeds,  887. 
attorney's  fees,  888. 
burden  of  proof  to  show,  865. 
claim  of  pledgee  or  collateral  assignee,  883. 
dower  rights,  879,  880. 

investment ;  gross  sum,  881. 
equal  mortgages,  866. 

equitable  priorities  between  subsequent  mortgagees,  864. 
execution  and  mortgage  liens,  874. 
homestead  rights.  882. 
how  determined,  857. 

incumbrancers  prior,  not  made  parties,  rights  of,  862. 
interest  of  tenant  for  years,  885. 
judgment ;  against  sheriff  for  failure  to  return  execution,  876. 

by  confession  as  indemnity,  875. 

confessed  by  member  of  partnership,  877. 

satisfaction,  873. 
litigating  questions  as  to,  on  application  for  reference,  894, 
mechanic's  lien,  886. 
of  judgments  over  dower  rights,  873. 
of  liens ;  determination  of,  857. 

prior  incumbrancers  not  made  parties,  rights  of,  862. 
provision  for  wife  and  children,  878,  879. 
purchase  by  mortgagee  of  part  of  premises,  884. 
;  purchaser  at  judicial  sale  subject  to  incumbrances,  866. 

mistake  in  indexing,  866. 
record  presume  to  determine,  864. 
rights  of  ccsluis  que  trust.  887. 

of   senior  mortgagee  over  junior,  866. 
what  interests  bound  by  judgment  liens,  872. 


2068  GENERAL    INDEX. 

References  are   io  Sections. 
SURPLUS  MO^¥.YS— continued. 
Distribution — continued. 

protection;  of  equitable  rights  of  third  parties,  872. 

of  other  claims  and  incumbrances,  854. 
provisions  of  code,  833. 
purchaser  has  claim  on,  when,  848. 

Louisiana  rule,  848. 
rights  of  incumbrancers  pendente  lite,  863. 
rights  of  prior  incumbrancers  not  parties,  862. 
rules  of  New  York  supreme  court,  832. 
school  taxes  can  not  participate  in,  1020. 

second  mortgagee  acts  at  peril  in  paying  to  first  mortgagee,  850. 
six  months'  clause,  843. 
statutory  and  court  rules;  object,  834. 
subsequent  incumbrancers ;  equitable  priorities,  864. 

bonds  of  railroad  not  entitled  to  participate  in,  850. 
California  code,  850. 

can  not  litigate  between  themselves,  834. 
equitable  priorities  between,  864. 
Michigan  rule,  850. 

second  mortgagee  preferred  to  mortgagor,  850. 
assignee  of  second  mortgage,  850. 
to  what  officers  payable,  832. 
to  wrong  person ;  order  of  restoration,  893. 
when  not  paid  into  court,  836. 
where  mortgagor  deceased,  860. 
who  entitled  to  participate  in,  843. 
Dower  In.     See  Dower,  845,  879,  880. 

ascertainment  of  interests ;  annuity  tables,  881. 
investment ;  payment  of  gross  sum  in  lieu  of,  881. 
priority  of  judgment  liens,  874. 
right  to ;  priority,  879,  880. 
generally,  831. 

grantee  or  assignee  of  land,  right  to,  846. 
ejected  tenant   entitled  to   damages  therefrom,    177. 
execution  ;  lien  of  ;  priority,  874. 
homestead ;  rights  of  in  ;  distribution ;  priority,  882. 
hypothecary  action  to  enforce  claim  in  Louisiana,  855. 
in  foreclosure  under  power,  852. 
inchoate  right  of  dower  in,  880.    See  Dower. 
inferior  liens  and  interests  transferred  to,  843. 
intervenor's  right  to,  843. 
investment,  833. 

of  dower  interest  in,  881. 

of  moneys  not  applied  for,  889. 


GENERAL    INDEX.  2069 

References  are   to  Sections. 

SURPLUS  MO^'EXS— continued. 

judgment;   against  sheriff  for   failure  to   return   execution,   876. 

by  confession ;  as  indemnity,  875. 
priority,  875. 

confessed  by  member  of  partnership,  877. 
priority,  i77. 

lien  on,  871. 

priority,  876. 

executory  contract  to  execute  mortgage,  874. 

satisfaction,  873. 

what  interests  bound  by  lien  of,  872. 
lessee  of  mortgaged  property  no  claim  on,  847. 
liens  paid  in  order  of  priority,  856. 

priorities  how  determned,  857. 

equitable  priorities  between  subsequent  mortgagees,  864. 
life  tenancy;  interest  in  surplus,  861. 
married  woman's  equitable  right  to,  878. 

provision  for  in  distribution,  878. 
mechanics'  liens ;  priority,  886. 
mortgagee  liable  for,  843. 

mortgagee  of  individual  member  of  firm,  claim  to,  850. 
New  York  code ;  provisions  for  disposition,  833. 
notice  of  application  for.     See  Application  ;  Notice. 
partnership;  judgment  confessed  by  one  member  of,  877. 

priority,  877. 
payment ;  into  court,  832.  835,  838,  860. 

into  supreme  court;  distribution,  891. 

into  surrogate's  court;  distribution  by  surrogate,  890. 

releases  to  what  extent,  850. 

to  first  mortgagee  by  second  mortgagee,  850. 
plaintiff  having  other  liens,  may  share  in,  22>2>. 
pledge ;  of  mortgagee ;  claim  of  pledgee ;  priority,  883. 
pricr  incumbrancers ;  rights  of  when  not  parties,  862. 

distribution,  862. 

suffering  default,  353. 
priority  of  liens;  order  and  determination  of,  856,  857. 

equitable  priorities  between  subsequent  mortgagees,  864. 

how  priorities  determined,  857. 
proceedings  on,  890  et  seq.    See  Distribution,  this  title, 
protecting  claim  to,  854. 
purchaser  has  claim  on,  when,  848. 

Louisiana  rule,  848. 
recovery  where  wrongfully  paid,  893. 
Reference. 

account  of  tenants  in  common,  902. 

appearance  by  claimant  neglecting  to  file  notice  of  claim,  904. 

application  for,  894. 


2070  GENERAL    INDEX. 

References  are   to  Sections. 
SURPLUS  MO^'EXS— continued. 
Reference — continued. 

ascertaining  to  whom  residue  belongs,  903. 
attorney's  claim  on  judgment  for  fees,  902. 

how  protected,  902. 
by  whom  referee  appointed,  894. 
claimant  neglecting  to  file  notice,  can  not  maintain  independent 

proceeding  pending  such  reference,  904. 
conclusiveness  of  decision,  901. 
conduct  of,  900. 
decides  direct  issues,  897. 

determination  of  all  questions  affecting  claims.  901. 
determination  of  questions  of  usury,  901. 
duty  to  ascertain  and  report  as  to  whole  surplus,  903. 
equitable  adjustment  of  claims,  901. 
equitable  assignment  of  right  to  surplus,  902. 
extent  of  referee's  inquiry,  903. 
hearing  evidence,  901. 

inquiry  into  validity  of  conveyances,  etc.,  901. 
is  not  a  collateral  action,  897. 
is  special  proceeding,  897. 
judgment  lien ;  irregularities,  902. 
mechanic's  liens,  902. 
mistake;  clause  reserving  life  estate,  902. 
nature  of  proceedings,  900. 
neglect  to  appeal  from  order,  897. 
oath  of  referee,  898. 
object  of,  900. 

only  perfected  liens  can  be  litigated,  902. 
order  of,  898. 

what  petition  must  show,  898. 
petition  for,  898. 

what  petition  must  show,  898. 
power  of  court  to  appoint  referee,  897. 
powers  and  duties  of  referee,  generally,  901. 
powers  of  referee;  jurisdiction,  901. 
proof  of  claim  on,  899. 

presentation,  proof,  and  examination  of  claims,  899. 
referee  must  ascertain  and  report  facts  as  directed,  906, 
report ;  confirmation,  909. 

confirmation  on  failure  to  except  to,  907. 

contents,  906. 

exceptions;  hearing;  papers  and  testimony,  908. 

filing  and  confirmation,  906. 

modification,  setting  aside,  etc. ;  new  order.  908. 

must  be  of  facts  as  directed,  906. 

opening,  setting  aside,  etc. ;  new  order,  910. 


GENERAL    INDEX.  2071 

References  are   to  Sections, 
SURPLUS  '^lO^YXS— continued. 
Referenxe — continued. 
report — continued. 

order  of  distribution ;  appeal  from,  911. 
should  show  due  notice  to  parties,  906. 
to  be  made  as  to  entire  surplus,  903. 

as  to  who  entitled  to  residue,  903. 
to  include  signed  testimony,  905. 
what  parties  appeared,  907. 
testimony  to  be  signed  and  filed,  905. 
to  ascertain  amount,  832. 

to  assert  or  prove  lien  junior  to  mortgage,  843. 
to  determine  priority  of  claims,  894. 
what  claims  may  be  litigated,  902. 
what  issues  may  be  disposed  of,  901. 
right  of  wife  to,  880. 

rights  as  between  claimants  of  interest  in  equity  of  redemption,  385. 
rules;  for  disposition;  statutory  and  court,  832,  833. 
school  taxes  can  not  participate  in,  1020. 

second  mortgagee  acts  at  peril  in  payment  to  first  mortgagee,  850. 
six  months'  clause,  843. 
Subsequent  Lienors. 

bonds  of  railroads  not  entitled  to  participate  in,  BSD, 

California  code,  850. 

can  not  litigate  between  themselves,  834. 

claim   on,  850. 

equitable  priorities  between.  864. 

Michigan  rule,  850. 

second  mortgagee  preferred  to  mortgagor,  850. 

assignee  of  second  mortgage,  850. 
tenancy  for  years;  interest  of  lessee;  priority,  885. 
trust ;  rights  of  beneficiaries  ;  distribution,  887. 
who  may  apply  for,  843. 
wrongfully  paid,   recovery,  893. 
SURPRISE. 

setting  aside  foreclosure  sale  for,  644.    See  Sale;  Setting  Aside. 
SURRENDER. 

of  premises  under  statute,  prerequisite  to  redemption,  when,  1186. 
of  right  of  redemption  enforced,  when,  1037. 
SURROGATE. 

distribution  of  surplus  moneys  by,  890. 
TACKING. 

as  to,   1201. 
TAX  SALE. 

purchaser  at,  proper  if  not  necessary  party  to  a  foreclosure,  196. 
redemption  from,  1185. 

money  paid  on  to  be  repaid  on  redemption,  1185. 
sum  payable  on,   1204. 


2072  GENERAL    INDEX. 

References  are   to  Sections. 
TAX  SALE — continued. 

sum  payable  to  redeem  from,   1204. 
validity  of  title  determined  in  foreclosure,  when,   196. 
TAXATION  OF  COSTS.    See  Costs. 
TAXES. 

a  part  of  mortgage,  when,  470. 

accumulation ;  as  affecting  right  to  appointment  of  receiver,  801. 

as  ground  for  appointment  of  receiver,  798. 
allowable;  in  surplus  proceedings.    See  Costs,  1020. 

on  redemption,  1185.    See  Redemption. 

on  reference  to  compute  amount  due,  514. 
and  attorney  fees  to  be  paid  as  part  of  mortgage  debt,  when,  470. 
application  on  mortgage,  469. 

averment  in  complaint  as  to  payment  of  mortgage  tax,  350. 
breach  of  condition  to  pay  must  occur  before  filing  bill  to  foreclose,  58. 
complaint  must  set  out  amount  unpaid,  354. 
default  in  payment  of,  58. 

misinformation  as  to  payment  as  affecting  right  to  foreclose,  58. 
defense  of  tax  title ;  right  to  litigate  validity,  496. 
failure  by  mortgagor  to  pay ;  effect  of,  58. 
ground  for  foreclosure,  58. 

exercise  of  option.  70. 

payment  after  default,  58. 
gravel  road ;  set-off  of  on  foreclosure,  445. 
holder  of  tax  certificate  as  proper  party,  196. 
holder  of  tax  deed  as  necessary  party,  136. 
mortgagee  may  recover  for  taxes  paid  after  foreclosure,  516. 
not  paid  off  as  decreed,  667. 

purchaser  not  required  to  complete  purchase,  667. 
payment  after  default,  58. 
payment  by  mortgagee,  516. 

allowance  on  reference  to  compute  amount  due,  516. 

claim  for  not  enforcible  in  independent  action  or  proceeding,  516. 

subrogation  to  rights   of   state,   516. 
payment  on  foreclosure,  470. 
purchaser ;   neglecting  to  complete  purchase,   chargeable  with,   665. 

not  affected  by  lis  pendens,  374. 
reference;  to  compute  amount  due,  517. 

computation  on  failure  to  pay  taxes  and  assessments,  517. 
right  of  mortgagee  to  interest  on  taxes  paid,  516. 
right  of  purchaser  to  where  sale  set  aside,  652. 
right  to  deduct  from  gross  appraisement,  540. 

right  to  foreclose  on  default  in  payment  of ;  as  affected  by  extension 
of  time  of  payment  of  mortgage,  70. 


GENERAL    INDEX.  2073 

References  are   to  Sections, 
TAXES — continued. 

sale ;  bar  of  purchaser  by  foreclosure  of  mortgage  previously  executed, 
488. 
purchaser  a  proper  defendant,  196. 

not  affected  by  foreclosure  to  which  he  is  not  made  a  party, 
196. 
tax  title ;  estoppel  of  mortgagee  to  set  up  against  mortgagor,  485. 
in  mortgagor,  no  defense  on  foreclosure,  482. 
stipulation   for   payment  of ;  complaint  must  set  forth  amount,   etc., 

paid,  2i7. 
tax  title  holder ;  when  not  affected  by  foreclosure  and  sale,  682. 
writ  of  assistance  to  dispossess,  726. 
TENANT  FOR  LIFE. 

surplus ;  distribution,  861. 

necessary  defendants  in  foreclosure  proceedings,  177. 
TENANTS.     See  Joint  Tenants  and  Tenants  in  Common;  Landlord 
AND  Tenant. 
necessary  defendants  in  foreclosure  proceedings,  177. 
TENANTS  BY  ENTIRETY. 

distribution  of  surplus  on  foreclosure  of  property  held  by,  878. 
TENANTS  IN  COMMON.   See  Joint  Tenants  and  Tenants  in  Com- 
mon. 
redemption  by,  1199. 
TENDER.     See  Redemption  ;  Bill  on  ;  Requisites. 
after  default  stays  interest,  when,  583. 
after  suit  brought,  effect,  275. 
as  condition  precedent  to  right  to  redeem,  1220. 
can  not  be  made  after  foreclosure  commenced,  275. 
does  not  revive  right  of  redemption,  1254. 
extinguishes  power  of  sale,  915. 
interest  does  not  stop  at  date  of,  1102. 
of  costs  after  action  brought ;  effect,  996. 
of  debt;  at  maturity;  effect,  468. 
as  preventing  foreclosure,  468. 
as  releasing  lien  of  mortgage,  468. 
payable  on  demand ;  effect  of,  344. 
of  whole  debt ;  option  to  make  payments  before  maturity,  475. 
on  joinder  in  foreclosure  of  matured  and  unmatured  mortgages,  Z33. 
on  redemption,    1177. 
Indiana  rule,  1177. 
Missouri  doctrine,  1177. 
Texas  doctrine,   1177. 
to  wrong  party  in  possession.  1177. 
strict  foreclosure  opening  decree  for  informality,  978. 
sufficiency  of  to  discharge  lien,  468. 
THREATS.    See  Duress. 


2074  GENERAL    INDEX. 

References   are   to  Sections. 

TERMS  IMPOSED. 

on  setting  sale  aside,  651. 
TERMS  OF  SALE.    See  Sale. 
on  sale  by  advertisement,  941. 
See  Statutory  Foreclosure;  Advertisement. 
TIMBER. 

mortgagor  may  cut  from  premises,  302. 
passes  to  purchaser  on  foreclosure  sale,  706. 
right  to  cut,  302. 
TIME. 

computation  of;  on  redemption,  1145. 

extension  of ;  inures  to  benefit  of  mortgagor's  grantee,  466. 
on  principal,  466. 

effect  on  right  to  foreclose  for  default  in  payment  of  interest, 

466. 
payment  of  mortgage ;  as  affecting  right  to  declare  whole  sum 
due  for  default  in  payment  of  assessment,  taxes,  or  v^^ater 
rents,  70. 
for  holding  foreclosure  sale  open,  554. 
lapse  of  bars  redemption,  when.   1247. 

of   payment ;   extension  of,   as   defense   in   foreclosure,  466. 
consideration,  467. 

not  stated,  reasonable  time  intended,  360. 
of  redemption.    See  Redemption. 

lapse  of  bars  right,  when,  1247. 
sale  on  standard  time  sufficient,  553. 

to  repay  purchase  money,  not  fixed,  reasonable  time  intended,  329. 
within  which  sale  to  be  made  under  foreclosure,  536.     See  5"ale. 
TITLE. 

acquired  at  foreclosure  sale  relates  back  to  execution  of  mortgage,  712. 
adverse  and  paramount ;  can  not  be  litigated  on  foreclosure,  482. 
after-acquired ;  inures  to  mortgagee's  benefit,  455. 
claimants  of  adverse  or  paramount.  485. 

effect  of  making  parties,  485. 
defect  in  or  want  of ;  defense  on  foreclosure,  499. 

defective ;  no  defense  to  contract  assuming  mortgage,  while  grantee 
is  in  quiet  possession,  245. 
as  defense  against  assignee  of  mortgage,  412. 
effect  on  sale,  668.    See  Sale. 
no  defense  in  foreclosure,  483. 
effect  of  foreclosure  and  sale  on,  14. 
estoppel  of  mortgagor  to  deny,  451,  452. 
failure ;  count'^r-claim ;  interest,  448. 
defense  on  foreclosure,  499-501. 

in  favor  of  purchaser  subject  to  mortgage.  427. 
foreclosure ;  only  questions  affecting  equity  or  redemption  determin- 
able upon,  483. 


GENERAL    INDEX.  2075 

References  are   to  Sections. 
TITLE — continued. 
mistake  as  to,  433. 

correction ;  foreclosure,  433. 
Of  Purchaser. 

during  period  allowed  for  redemption,  713. 
on  sale  by  advertisement,  951. 
what  passes,  951. 
outstanding;  defense  on  foreclosure,  495,  496. 

paramount;  subsequently  acquired  by  mortgagor;   effect  of  foreclos- 
ure upon,  488. 
sum  paid  to  protect  repayable  on  redemption,  1204. 
to  personal  property,  vests  in  personal  representatives,  not  in  heirs,  192. 
want  of ;  in  mortgagor ;  defense  on  foreclosure,  501. 
when  vests  in  mortgagee,  14. 
TITLE   DEEDS. 

deposit  of  ;  equitable  mortgage,  330. 
TRIAL. 

adjournment;  change  of  venue  not  authorized,  529. 
computation  of  amount  due ;  power  to  order  reference,  529,  532. 
conducted  same  as  other  actions,  529. 
default ;  bill  confessed,  532. 

application  for  judgment;  time  of  applying,  531,  532. 
placing  cause  on  calendar,  532. 
failure  of  defendant  to  appear;  inquest  or  reference  of  issues,  529. 
failure  to  appear ;  not  equivalent  to  failure  to  answer,  529. 
frivolous  plea ;  application  to  strike  out,  532. 
issue  joined;  manner  of  trying,  hearing,  and  determining,  529. 
issues ;  must  be  disposed  of,  529. 
mode  of ;  general  rules,  529,  530. 
notice  of  cause  for ;  all  defendants  who  have  appeared  must  be  notified, 

387,  530. 
only  at  special  term,  in  county  where  premises  situated,  529. 
reference;  computation  of  amount  due;  general  discussion  of  subject. 
See  Reference. 
directing  when  some  of  defendants  are  infants  or  absentees,  531. 
power  of  court  to  order,  529. 
when  by  court,  and  when  by  jury,  529. 
when  only  part  of  defendants  have  answered,  530. 
TRUST. 

action  in  case  of,  1170. 

beneficiaries;  foreclosing  mortgage,  should  make  trustee  a  party,  131. 
may  foreclose,  132. 
necessary  defendants,   167. 

need  not  be  made  defendants  when  too  numerous,  168. 
not  in   esse,   or  not   ascertained,   need   not  be   made   defendants. 

when,  168. 
one  or  more  may  foreclose  for  all,  132. 
railroad  bondholders  need  not  be  made  parties  to  foreclosure,  131. 


2076  GENERAL    INDEX. 

References  are   to  Sections. 
TRUST — continued. 

beneficiaries;  refusing  to  join  with  trustee  as  plaintiffs,  necessary  de- 
fendants, 207. 
should  unite  with  trustee  in  foreclosing  mortgage,  132. 
should  usually  be  made  parties  to  foreclosure  by  trustee,  unless 
too  numerous,  127. 
cestui  que  trust  as  necessary  party  to  action  by  trustee,  127. 
Deed  of.   See  Trust  Deed. 

can  not  be  questioned  on  foreclosure,  485. 
executed  prior  to  mortgage,  485. 
expenses  of  to  be  retained  by  trustee,  852. 
for  creditors ;  creditors  may  set  up  usury  as  defense  in  foreclosure, 

411. 
not  litigated  on   foreclosure;   ejectment  proper  action,  485. 
parol  barred  by  foreclosure  sale,  698. 
resultant  barred  by  foreclosure  sale,  694. 

right  of  beneficiary  in  trust  deed  to  purchase  at  foreclosure  sale,  320. 
secret  trust  barred  by  foreclosure  sale,  694. 
surplus ;  distribution  and  priority,  887. 

rights  of  beneficiaries,  887. 
trustee.    See  Trustee. 
trustee  cannot  enter  appearance  which  will  confer  jurisdiction  to  enter 

personal  judgment  against  cestui  que  trust,  271. 
trustees  as  necessary  parties,  132. 
undue  influence;  relief  on  foreclosure,  435. 
TRUST  DEED.    See  Deed  of  Trust. 

condition  in  as  to  foreclosure,  43,  45. 
must  be  complied  with,  45. 

prevents  bondholders  bringing  action  to  foreclose,  when,  45. 
sale  under,  allowance  of  disbursements,  1020.     See  Disbursements. 
stipulation  maturing  debt  on  default  in  payment  of  single  note,  55. 
object  of  stipulation,  55. 
TRUSTEE. 

appointment  of  receiver  as  against  trustee  of  mortgagor's  estate,  796. 

complaint ;  allegations  by  or  against  trustee,  343. 

delegation  of  power,  128. 

election  not  to  foreclose  prevents  action  by  bondholder  when,  45. 

entitled  to  retain  expenses  and  payment  for  benefit  of  trust,  852. 

estoppel  of  mortgagor  in  foreclosure  to  set  up  trusteeship  in  himself, 

452. 
executor   of,   allowed  to   foreclose,    120. 
foreclosure   by;    administrator   of    deceased   trust    creditor    necessary 

party,  127. 
holding  any  interest  in  premises,  necessary  defendants,  166. 

must  be  made  parties  in  their  representative  capacity,  166. 
may  foreclose,  127.    See  Parties  ;  Plaintiffs. 
may  purchase  at  foreclosure  sale,  609. 


GENERAL    INDEX.  2077 

References   are   to  Seetions. 

TRUSTEE— continued. 

of  fund  for  benefit  of  creditors,  may  foreclose  without  making  credit- 
ors parties,  131. 
power  of  sale ;  costs  on  foreclosure  by  trustee,  1013. 
power  of,  to  purchase  at  foreclosure  sale,  609. 
refusal  of,  to  act ;  appointment  of  receiver,  822. 
refusing  to  join  with  beneficiaries  as  plaintiffs,  necessary  defendant, 

207. 
request  to  foreclose,  129. 

provisions  in  deed  of  trust  must  be  strictly  complied  with,  129. 
stipulated  percentage,  130. 
right  to  bind  owners  of  notes  by  agreement  to  extend  time  of  pay- 
ment, 466. 
should  be  made  a  party  to  foreclosure  by  cestuis  que  trust,  132. 
should  unite  with  cestuis  que  trust  to  foreclose  mortgage,  132. 
substitution  of,  power  of,  128. 
successor  of,  holding  subsequent  mortgage,  a  necessary  defendant,  179. 

should  usually  foreclose,   120. 
to  whom  mortgages  are  executed  as  such,  may  foreclose,  127. 
UNDIVIDED  PREMISES. 

mortgaged  interest  may  be  foreclosed,  307. 

one  of  two  joint  mortgagors  can  not  sever  debt  and  pay  a  moiety,  307. 
UNDUE  INFLUENCE. 

relief  on  foreclosure,  435. 
UNFORESEEN  EVENT. 

as  ground  for  redemption,  1156.  It 

UNITED  STATES  LOAN  COMMISSIONERS. 

deed  by  oath,  in  pursuance  of  sale  held  by  one  only,  conveys  no  title, 

109. 
successors  may  foreclose,  133. 
UNKNOWN  HEIRS.    See  Unknown  Owners,  266. 
UNKNOWN  OWNERS. 

may  be  served  by  publication,  266. 
UNLIQUIDATED  DAMAGES.     See  Damages. 
USURY. 

as  defense  in  foreclosure,  409.    See  Answers  and  Defenses. 
how  alleged  and  proved,  410. 
to  protect  homestead,  411. 
to  whom  available,  411. 
estoppel  of  mortgagor  to  set  up,  as  against  assignee  of  mortgage  in 

good  faith,  453. 
in  redemption,  1178. 

injunction  to  restrain  statutory  foreclosure  in  case  of,  945. 
inquiry  into,  on  reference  to  ascertain  surplus,  901. 
law  of  place,  410. 

no  defense  to  contract  assuming  mortgage,  245. 
questions  of :   not  raised  on  confirmation   of  sale,  614. 


2078  GENERAL    INDEX. 

References  are   to  Sections. 
USURY — continued. 

set  off  on  foreclosure,  446. 
setting  aside  sale  because  of,  636. 
statutes  construed  strictly,  410. 
stipulation  for  attorney's  fee,  1003-1005. 
title  of  purchaser  not  affected  by  when,  707. 
valid  mortgage  made  part  of  new  usurious  mortgage,  409. 
when  purchaser  subject  to  mortgage,  not  estopped  to  set  up,  460. 
USURIOUS  INTEREST.    See  Interest;  Usury. 
VARIANCE. 

between  allegation  and  proof  of  usury,  410. 
in  description  of  note  or  bond,  340,  342. 
in   description   of   premises,  359. 
VENDOR.   See  Vendor  and  Vendee. 

may  purchase  at  foreclosure  sale,  609.     See  Sale. 
VENDOR  AND  VENDEE.    See  also  Assignment. 
answer  by  vendee  not  assuming  mortgage,  385. 
assumption  of  mortgage.     See  Assumption. 
conditional  vendee  of  personal  property  situated  on  mortgaged  land 

not  proper  party,  144. 
defect  in  or  failure  of  title,  as  defense  on  foreclosure,  499-501. 
defense  of  payment  by  assumption  of  prior  mortgage  against  subse- 
quent assignee  of  purchase  money  mortgage.  472. 
equitable  mortgage;  deposit  of  title  deeds,  330. 
false  representations ;  as  to  extent  and  boundaries  of  land,  429. 
as  defense  in  foreclosure,  429. 
by  purchaser  assuming  mortgage,  427. 

by  vendor ;  defense  in  foreclosure  of  purchase  money  mortgage, 
425  ct  seq. 
fraud;  as  to  number  of  acres;  defense  in  foreclosure,  428. 

innocent  purchasers ;  relieved  by  satisfaction  procured  by,  477. 
mistake;  as  defense  in  foreclosure.  430  et  seq. 

correction  as  against  subsequent  viendee ;  foreclosure,  431. 
purchase  money  mortgage ;  fraud ;  relief,  422  et  seq. 

defense  on  foreclosure,  422  et  seq. 
purchaser ;   from  mortgagor,   may   set  up  usury  as   defense  in   fore- 
closure. 411. 
from  both  mortgagor  and  mortgagee,  takes  whole  title.  406. 
intermediate ;  having  assumed  mortgage,  personally  liable.  252. 

not  having  assumed  mortgage,  not  liable.  252. 
not  liable  for  mortgage  debt,  unless  he  actually  assumes  it,  244. 
purchaser  of  mortgaged  premises  not  liable  for  deficiency,  239. 
otherwise  in  New  Jersey,  240. 
the  rule  in  New  York,  241. 
purchaser;  subject  to  mortgage;  complaint;  decree  for  deficiency.  356. 
denial  of  assumption.  481. 
estoppel  against.  459  ct  seq. 


GENERAL    INDEX.  2079 

References   are   to  Sections. 

VENDOR  AND  VENDEE— co«h«M£'d. 

purchaser ;  under  land  contract  with  mortgagor,  a  necessary  defendant 

144. 
under   land   contract   necessary  parties   defendant  to  mortgage   fore- 
closure, 411. 
VENUE. 

action  brought  in  improper  county,  31. 

change  of,  32. 

change  of  as  affecting  lis  pendens,  367. 

not  authorized  by  provisions  as  to  adjournment,  529. 
debt  payable  in  one  county ;  land  in  another,  30 

provision  of  New  York  code,  29. 
eflfect  of  mortgagor's  consent  to  foreclosure  in  another  county,  29. 
in   foreclosure  action,  29. 
Alabama  rule,  29. 
California  rule,  29. 
Iowa  rule,  29. 
Kentucky  rule,  29. 
New  York  rule,  29. 
South  Carolina  rule,  29. 
Utah  rule,  29. 
m  New  York,  where  land  within  the  state,  29. 
place  of  holding  reference  to  compute  amount  due,  521. 
under  Alabama  code,  29. 
under  California  code,  29. 

where  mortgage  covers  land  in  two  counties,  29. 
where  the  land  lies  out  of  the  state,  34. 
VERDICT. 

omission  to  set  out  note  and  bond  cured  by,  340. 
VOLUNTARY  APPEARANCE.    See  Appearance. 
WAIVER. 

by  acknowledgment,  1256. 

failure  to  demur  to  complaint  because  mortgagee  was  not  made  party 

as,  389. 
of  bar  of  right  of  redemption,  1255. 
of  election  of  mortgagee  that  debt  become  due,  61. 
of  forfeiture,  by  extension  of  time  for  payment  of  installment,  328. 
of  irregularities;  where  no  objection  is  made  before  entry  of  judgment, 

523. 
of  notice  of  election  to  declare  whole  sum  due,  62. 
of  objection  to  confirmation,  661. 
of  right  of  redemption,  1036. 
of  sale  in  parcels,  940. 
WASTE. 

as  affecting  right  of  appointment  of  receiver,  801. 
as  ground  for  appointment  of  receiver,  799. 
WATER  RENTS. 

right  to  foreclose  on  default  in  payment  of;  as  affected  by  extension 
of  time  of  payment  of  mortgage,  70. 


2080  GENERAL   INDEX. 

References  are   to  Sections. 

WELSH  MORTGAGE. 

can  not  be  foreclosed,  38. 
WIDOW.    See  also  Dower;  Husband  and  Wife;  Homestead. 

dower;  admeasured;  in  premises  mortgaged  by  husband  alone,   151. 

when  barred  by  foreclosure,  351. 
must  be  served  with  summons,  158. 
not  a  necessary  defendant,  where  she  accepts  a  devise  or  bequest  made 

in  lieu  of  dower,  156. 
of  mortgagor,  or  owner  of  equity  of  redemption,  a  necessary  defend- 
ant,  155. 
omitted  as  a  defendant;   can   not  maintain   ejectment,    156. 

may  redeem,  156. 
redemption  by,   1211. 

amount  payable  by.  1211. 
right  to  redeem,  1134. 

what  widow  must  pay  on  redemption,  1192. 
who  did  not  sign  mortgage,  not  a  proper  defendant,  212. 
WIFE.   See  Dower;  Husband  and  Wife;  Homestead;  Widow. 
service  on,  of  process  in  foreclosure,  158. 
where  property  community  property,  158. 
WILL. 

costs  on  foreclosure;  right  of  devisees  to  have  taxed,  1016. 
devisees;  may  set  up  usury  as  defense  in  foreclosure,  411. 

of  persons  liable  for  deficiency,  must  be  sued  therefor  separately 
from  foreclosure,  236. 
equitable  conversion ;  as  affecting  character  of  surplus,  840. 
legacies;  distribution  of  surplus;  priority  of  judgment  liens.  873. 
parties ;  devisees.    See  Parties. 

surplus;  judgment  for  deficiency  against  executors,  etc.,  892. 
action  against  heirs  or  devisees,  892. 
WISCONSIN. 

foreclosure  in;  necessity  of  averring  proceedings  at  law,  347. 
WITNESSES. 

evidence  on  reference  to  compute  amount  due.  513. 

on  reference;  to  ascertain  surplus;  signing  testimony,  905. 

to  compute  amount  due;  testimony  need  not  be  signed,  513. 
husband  and  wife  competent  for  each  other,  509. 
WORDS  AND  PHRASES.    See  Definitions. 
WRIT  OF  ASSISTANCE. 

effect  of  delay  in  applying  for,  725. 
right  to  after  time  for  redemption  has  expired,  725. 
to  put  purchaser  at  foreclosure  sale  into  possession,  681,  725  et  seq. 
when  granted,  725. 
WRIT  OF  ENTRY. 

nature  and  use  of,  3,  4. 
notice  to  tenant  not  a  prerequisite,  46. 
WRIT  OF  ERROR. 

lis  pendens;  when  effective,  366. 


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